Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

Tennessee law permits the recovery of punitive damages when a defendant has engaged in reckless conduct.  Because the standard for criminally negligent homicide mirrors the standard for recklessness necessary to recover punitive damages, the Tennessee Court of Criminal Appeals’ affirmation of the guilty verdict against a criminal defendant in a recent case could be pertinent to a punitive damages claim in a personal injury or wrongful death case.

Leading up to the incident, the proof showed that Appellant and the victim had a rather torrid relationship. The victim was staying with a friend because she had been arguing with Appellant. The two were seen arguing on the day of the offense and at least one witness saw Appellant swipe his open hand toward the victim, causing

her to react. The victim was seen at least twice with her foot dangling out of the passenger door of the car while Appellant was driving. The victim was screaming and flailing about in the car as it was driving “very fast” down the road. Appellant did not stop the car in order for the victim to exit safely. Appellant later admitted that he did not pull over and assist the victim when she was injured. From these facts, a jury could have concluded that Appellant engaged in conduct that he knew, or should have known, would have created a substantial and unjustifiable risk to the victim and constituted a gross deviation from the standard of care of an ordinary person under those circumstances.

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While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event. 

Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.

Under the new rules, hands-free use of a mobile telephone is allowed using either a wired or wireless earpiece, or the speakerphone function of the mobile telephone. Wireless connection of the mobile telephone to the vehicle for hands-free operation of the telephone, which would allow the use of single-button controls on the steering wheel or dashboard, would also be allowed.

The text of the new federal rule may be found here.  FAQs on the new rule may be accessed here. More information on distracted driving is available here.  This page details the laws of the various states on the subject of cell phone and texting while driving.  Finally, here are various studies on the subject of distracted driving.

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New York's highest court has ruled that the claim of bus passengers injured in a single-vehicle bus wreck which sought to hold the bus manufacturer liable for the failure to install  passenger seatbelts on the bus were not preempted by federal regulations promulgated by the National Highway Traffic Safety Administration (NHTSA).

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The old "every dog gets one free bite" rule was severely limited as a result of legislation enacted by the Tennessee General Assembly several years ago.  In fact, the new law works to protect motorcyclists and bicyclists, too.  Here are the new rules:

44-8-413.  Civil liability for injury caused by dogs. 

  (a)  (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

   (2) The owner may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog's owner knew or should have known of the dog's dangerous propensities.

(b) Subsection (a) shall not be construed to impose liability upon the owner of the dog if:

   (1) The dog is a police or military dog, the injury occurred during the course of the dog's official duties and the person injured was a party to, a participant in or suspected of being a party to or participant in the act or conduct that prompted the police or military to utilize the services of the dog;

   (2) The injured person was trespassing upon the private, nonresidential property of the dog's owner;

   (3) The injury occurred while the dog was protecting the dog's owner or other innocent party from attack by the injured person or a dog owned by the injured person;

   (4) The injury occurred while the dog was securely confined in a kennel, crate or other enclosure; or

   (5) The injury occurred as a result of the injured person enticing, disturbing, alarming, harassing, or otherwise provoking the dog.

Subsection (e) of the statue contains two important definitions:

 (1) "Owner" means a person who, at the time of the damage caused to another, regularly harbors, keeps or exercises control over the dog, but does not include a person who, at the time of the damage, is temporarily harboring, keeping or exercising control over the dog; and

   (2) "Running at large" means a dog goes uncontrolled by the dog's owner upon the premises of another without the consent of the owner of the premises, or other person authorized to give consent, or goes uncontrolled by the owner upon a highway, public road, street or any other place open to the public generally.

We are in the process of using this statute to sue a dog owner who allowed his dog to run at large.  The dog attacked a motorcyclist and a crash with serious injuries resulted.

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The California Supreme Court has ruled that a truck driver may be held liable for parking his vehicle along a freeway to have a snack where regulations permitted only emergency parking.

The entire opinion has a fascinating discussion of the law of duty, but the following gives you a flavor for the balance of the opinion:

If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane?  Six inches?  If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room?  Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights?  To ask these questions is to see why a categorical exemption is not appropriate.  The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty.  That question, as discussed earlier, is generally one to be decided by the jury, not the court.

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The Board of Commissioers on Grievances and Discipline of The Supreme Court of Ohio has released an opinion of the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds. 

Here is the Syllabus of the Opinion 2011-1: 

It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application.

The Opinion cites a recent opinion out of Tennessee:

In Tennessee, an ethics committee noted that “[r]equiring a plaintiff’s lawyer to enter agreements posed in the inquiry, particularly requiring that the attorney indemnify and/or hold harmless any party being released or subrogation interest holder from medical expenses or liens, creates a conflict between the interests of the plaintiff’s attorney and those of their client.”  Tennessee SupCt, Board of Professional Responsibility, Op. 2010-F-154 (2010). The committee advised that “an attorney cannot ethically agree to such agreements and/or clauses.”  The committee cited Rules 1.7(b), 2.1, 1.2 and 1.8(e). Id.

Similar opinions from other states are also cited.

This is a real problem for the plaintiff's bar and it nice to see it addressed by the various disciplinary boards.

Thanks to my wife Joy, a member of the Ohio (and Tennessee and Michigan and Kentucky) bars for directing my attention to this opinion.

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The Tennessee Bar Association has graciously permitted me to write a column on tort law for many years.  I must admit that I enjoy writing these articles, although I must also admit that each time the calendar reminder pops-up on my computer reminding me of yet another deadline for yet another article a small groan slips out from my aging body.  

The January 2011edition of the Journal is now available.  My newest article is titled "Presents From 'Round Back of the Tree."  The article alerts readers to two recent Court of Criminal Appeals cases that may be of assistance to tort lawyers as they attempt to prove John Doe UM claims.

Confused?  Here are the first three paragraphs (footnotes omitted).  Read them and see if you can figure out where the article is headed.

As we leave the holiday season behind, we notice that the Court of Criminal Appeals left two gifts behind the tree to lawyers who practice personal injury law on behalf of plaintiffs. These are unusual gifts from an unusual source, but they have the propensity to impact tort lawyers and their clients.

The first gift is State v. Hall, where the court held that a trial judge did not err in admitting a 911 call that was made while the defendant was breaking into a house and attacking a victim and continued after defendant left the house. The 911 tape of the victim’s call was admitted into evidence under the excited utterance exception to the hearsay rule set forth at Tenn. R. Evid. 803(2).

An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The rationale for admitting an excited utterance is that “it is likely there was a lack of reflection — and potential fabrication — by a declarant who spontaneously exclaims a statement in response to a startling event. … Second, ordinarily the statement is made while the memory of the event is still fresh in the declarant’s mind. This means that the out-of-court statement about an event may be more accurate than a much later in-court statement.” The Hall court rejected the criminal defendant’s argument that the portion of the tape recorded after the defendant left the house was not covered by the exception, noting “there is no requirement that the cause of the startling event still be present or that the startling event still be ongoing — only that the declarant still be under the stress or excitement from the event.”

See where this is headed?  Of course you do - you're a tort lawyer.

Enjoy.

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The National Highway Traffic Safety Administration (NHTSA) has reported  that post-mortem testing has demonstrated an increase in the level of drug involvement among fatally injured drivers over a five-year period from 2005 to 2009.

According to data compiled by NHTSA, 63 percent of the 21,798 drivers who were killed in motor vehicle crashes in 2009 were tested for drugs. Of these, 3,952 tested positive for drug involvement, representing 18 percent of the total for that year. The report also showed drug use reported by the states among fatally injured drivers increasing from 13 percent in 2005, to 15 percent in 2006, 16 percent in 2007, and 18 percent in 2008.  Drug involvement does not mean the driver was impaired or that drug use was the cause of the crash.

The drug data  was collected by NHTSA as part of its Fatality Analysis Reporting System (FARS) and included information collected from the states under three broad categories: whether the driver was tested, the type of test conducted, and the test results. The types of drugs recorded in FARS include narcotics, depressants, stimulants, hallucinogens, cannabinoids, phencyclidines (PCPs), anabolic steroids, and inhalants. The groups include both illicit drugs, as well as legally prescribed drugs and over-the-counter medicines.

The abuse of drugs, including alcohol,  injures and kills many people every day on our highways, in our workplaces, and in our homes.  Illegal drugs are part of the problem, but abuse of prescription drugs also contributes to deaths and injuries on a daily basis.  Do your part to not to contribute to this problem by consuming alcohol responsibly, avoiding the use of illegal drugs, and using prescription drugs only as ordered by a competent physician.  Remember that many prescribed drugs can alter your ability to drive a vehicle or operate machinery, and thus follow the recommendations of your doctor concerning such matters.

Read the report here,

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Does a rental car company have the duty to check the driving record of potential customers before renting them a car?  Does the fact that the records are available electronically have any impact on whether a duty exists?

The California Court of Appeals recently considered these issues and re-affirmed an earlier ruling  that   (a) a car rental agency is "not negligent for entrusting a car to a person lawfully qualified and apparently fit to rent and drive it”  and (b) "an agency has no duty to ask questions to investigate the driving record of the customer, and that the agency may rely on presentation of a valid driver‟s license as sufficient evidence of fitness to drive, absent a legislative declaration to the contrary."  

The court went on to conclude that despite changes in technology car rental agencies  "have no duty to conduct an electronic search of the driving records of their customers before entrusting a vehicle to them."  The court said that it was the responsibility of the legislature and not the courts to impose such a duty.

The decision is Flores v. Enterprise Rent-A-Car Co.,  B215105 (Cal. Ct. App. 2nd Distict  Sept. 28, 2010).   

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On Tuesday the 26th I posted about a NHTSA report on traffic safety.   I saved for today a reference to what the organization believes is a major cause of the decrease in deaths and injuries in motor vehicle cases:   safety regulations and programs imposed by state and federal governments.

Here is a summary of the findings on this point:

The long-term declining trend observed in fatalities since reaching a high in the early 1970s has occurred while significant vehicle and occupant safety regulations and programs were being enacted by NHTSA and the States. NHTSA-administered behavioral and vehicle safety programs, both in the crashworthiness and crash avoidance areas, and through the issuing of Federal Motor Vehicle Safety Standards has contributed tremendously to the long-term downward trend seen in motor vehicle traffic crash fatalities. In 2008, an estimated 244 lives were saved by the use of child restraints, 13,250 lives of people 5 and older were saved by seat belts, 2,546 lives of people 13 and older were saved by air bags, 1,829 lives were saved by the use of motorcycle helmets, and 714 lives were saved by minimum-drinking-age laws (NHTSA, 2009). Significant life-saving vehicle technologies like electronic stability control (ESC) have begun to penetrate the vehicle fleet. NHTSA estimates ESC would save 5,300 to 9,600 lives and prevent 156,000 to 238,000 injuries in all types of crashes annually once all light vehicles on the road are equipped with ESC (NHTSA, 2007).

 

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The National Highway Traffic and Safety Administration has issued a report analyzing motor vehicle crash data for 2008.  The good news:  the number of vehicle crashes, deaths and injuries continue to decline.

From the report: 

The number of vehicle miles traveled (VMT) is the primary exposure measure used when analyzing the occurrence of fatal motor vehicle crashes. VMT is collected by the Federal Highway Administration and in 2008 FHWA reported a decrease in VMT of almost 2 percent from that reported in 2007. This is the first reported decline in VMT since 1980. The number of motor vehicle crash fatalities per 100 million VMT was 1.25 in 2008, which is a decline of approximately 8 percent from the 2007 rate and is the lowest fatality rate per 100 million VMT ever recorded. The estimated number of people injured in crashes continued a long-term decline, dropping by 5.8 percent in 2008.

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The U.S. Centers for Disease Control and Prevention has estimated that motor vehicle accidents cost the United States economy almost $100 billion each year, or about $500 per licensed driver.

Motorcycle accidents cost about $12 billion.  Car and truck accidents total $70 billion. 

The CDC looked at data from 2005.  In that year, there were 3.7 million injuries and deaths resulting in medical care from motor vehicle accidents.

The CDC has also released a one-page fact sheet to help communities play an important role in reducing the human and economic toll of motor vehicle-related injuries by supporting prevention policies that have been shown to save lives and reduce costs.

Read the report here.

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U.S. Transportation Secretary Ray LaHood released updated 2009 fatality and injury data showing that highway deaths fell to 33,808 for the year, the lowest number since 1950.  The record-breaking decline in traffic fatalities occurred even while estimated vehicle miles traveled in 2009 increased by 0.2 percent over 2008 levels.

In addition, 2009 saw the lowest fatality and injury rates ever recorded:  1.13 deaths per 100 million vehicle miles traveled in 2009, compared to 1.26 deaths for 2008.

Fatalities declined in all categories of vehicles including motorcycles, which saw fatalities fall by 850 from 2008, breaking an 11-year cycle of annual increases.

Highlights of the latest Fatality Analysis Reporting System (FARS) and related NHTSA data include the following:

• 33,808 people died in motor vehicle traffic crashes in 2009, a 9.7 percent decline from 37,423 deaths reported in 2008, and the lowest number of deaths since 1950 (which had 33,186).

• An estimated 2.217 million people were injured in 2009, a 5.5 percent decline from 2.346 million in 2008.

• 30,797 fatal crashes occurred in 2009, down 9.9 percent from 34,172 in 2008.  All crashes (fatal, injury and property damage only) were down by 5.3 percent in 2009 from a year ago.

• Forty-one states, the District of Columbia and Puerto Rico all had reductions in fatalities, led by Florida (with 422 fewer fatalities) and Texas (with 405 fewer fatalities).

In Tennessee in 2009 there were 989 deaths in motor vehicle accidents, down from 1043 in 2008.   Alcohol-impaired driving fatalities were about the same - 303 in 2009 compared with 306 in 2008. 

Here is the report.

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ABC News reports that  Dr. Frank Ryan, the surgeon who performed extensive plastic surgery early this year on Heidi Montag, was sending a Twitter message about his dog before his fatal car crash Monday in Los Angeles.  The dog, who was in the car at the time of the crash, survived injuries to the head, eye and paw.   Dr. Ryan died of blunt force head injuries.

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Judge Susano and his colleagues on the Eastern Section of the Tennessee Court of Appeals issued an opinion yesterday in Usher v. Charles Blalock & Sons, Inc.   The opinion addresses some important issues of Tennessee law, but is mentioned here because it utlizies photographs scanned into the body of the opinion to help the reader understand how the wreck occurred.

 From time to time, I have seen drawings (and maybe even a photograph) appended to court opinions but I do not recall seeing a photograph inserted into the text of a Tennessee appellate opinion.  The photographs help tell the story in this case, and Judge Susano and his colleagues are to be congratulated for using them.

Usher has been assigned  Case No. E2009-00658-COA-R3-CV.   The opinion was released on June 30, 2010.

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Can't quite figure out if that automobile accident case happened in Davidson or Wilson County, Tennessee?   This website has a detailed map of every Tennessee county that you can use to start your investigation into this issue.

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PC Magazine Oprah Winfrey has been urging her viewers to promise not to text or make telephone calls while driving.   Last Friday she dedicated her show to the subject.

Some 23 states, including Tennessee, have laws banning texting while driving.  Eight other states have partial bans on texting while driving.  This chart summarizes the law of those states.

A July 2009 study by the Virginia Tech Transportation Institute concluded that texting while driving increases the risk of a crash by 20 times.   A recent University of Utah study reached a similar result.  The Secretary of Transportation has testified that distracted drivers caused the death of nearly 6000 people in 2008.

The Tennessee statute prohibiting texting while driving means that one who causes an accident as a result is negligent as a matter of law and is responsible for the harm they cause.  Truck and bus drivers are prohibited by federal law from texting while driving.

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The Federal Highway Administration has ruled that the 2009 Edition of the Manual on Uniform Traffic Control Devices must be adopted by the states as their legal standard for traffic control devices within two years.   Here is an excerpt of the Federal Register discussing the rule change. 

The MUTCD contains all national design, application, and placement, standards, guidance, options, and support provisions for traffic control devices. The purpose of the MUTCD is to provide uniformity of these devices, which include signs, signals, and pavement markings, to promote highway safety and efficiency on the Nation's streets and highways.  The MUTCD is adopted by reference in accordance with Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. 

The 2009 edition supersedes all previous editions and revisions of  the MUTCD.   Here is the PDF version.     There is already a change proposed to the 2009 edition.

Here are several PowerPoint presentations that explain the difference between the 2003 MUTCD and the 2009 edition.

Title 23 of the Code of Federal Regulations requires all States to do one of three things within two years after a new national MUTCD edition is issued or any national MUTCD amendments are made: 1) adopt the new or revised national MUTCD as the standard for traffic control devices in the State; 2) adopt the national MUTCD with a State Supplement that is in substantial conformance with the new or revised national MUTCD; or 3) adopt a State MUTCD that is in substantial conformance with the new or revised national MUTCD.

Thanks to Dale Darby of Brewer and Terry in Morristown, TN for bringing this to my attention.

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The Governors Highway Safety Administration has released a preliminary report indicating the motorcycle deaths have decreased on our nation's highways.  If the final numbers are substantially similar, deaths will have dropped for the first time in over a decade.

Based on preliminary data gathered for the first nine months of the year, GHSA is projecting that motorcycle fatalities declined from 5,290 in 2008 to 4,762 or less in 2009. The projection is based on data from 50 states and the District of Columbia. 

Tennessee had a substantial decrease in motorcycle deaths.  During the first nine months of 2008 the number of motorcycle deaths was 132.   In 2009, it was 101.

This is wonderful news.  HIghway deaths overall have been steady or decreasing over the past few years, but motorcycle deaths have continued to climb.  I look forward to the final report and some solid analysis about why deaths dropped during the year.

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Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier.

BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky  available for purchase over the Internet.  Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

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Truck drivers who text while on the road are now violating federal law.  On  January 26, 2010, the federal  Transportation Department  said  it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles.

Tennessee banned texting while driving effective July 1, 2009.  

The Transportation Department said that "FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting.  At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road.  Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers."

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The National Highway Traffic Safety Administration has set up a website called "Distraction.Gov."

The website reveals some interesting statistics:

• In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.
• In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).
• The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.
• The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).
• Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).
• An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.
• Nationwide, those drivers observed visibly manipulating hand-held electronic devices increased from 0.7 percent to 1.0 percent.
• Some 1.7 percent of drivers 16 to 24 years old were observed visibly manipulating hand-held electronic devices, up from 1.0 percent the previous year.
• More drivers in Western States were observed manipulating hand-held electronic devices (2.1%) than in the other regions of the country (from 0.4% in the Northeast to 0.8% in the Midwest).
• The use of hand-held devices increased the most in the West, from 0.6 percent in 2007 to 2.1 percent in 2008.
• The observed use rate of hand-held electronic devices was higher among females (1.2%) than among males (0.8%).

 The site also contains a list of states which ban driving while using cell phones or while texting.

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The National Safety Counsel  announced yesterday that it estimates at least 28% of all traffic crashes – or at least 1.6 million crashes each year – are caused by drivers using cell phones and texting.

From the organization's press release:

The estimate of 25% of all crashes -- or 1.4 million crashes -- caused by cell phone use was derived from NHTSA data showing 11% of drivers at any one time are using cell phones and from peer-reviewed research reporting cell phone use increases crash risk by four times. The estimate of an additional minimum 3% of crashes -- or 200,000 crashes -- caused by texting was derived by NHTSA data showing 1% of drivers at any one time are manipulating their device in ways that include texting and from research reporting texting increases crash risk by 8 times. Using the highest risk for texting reported by research of 23 times results in a maximum of 1 million crashes due to texting; still less than the 1.4 million crashes caused by other cell phone use. 

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David Cline, the paramedic who was killed when the private ambulance he was driving slammed into the back of a TDOT roadside help truck on Interstate 65 on October 22, 2009,  had a history of medical problems, including narcolepsy and epilepsy.  Investigators are unsure why Cline left the highway  but believe that the he suffered a "seizure or some type of medical condition that [incapacitated] him and led to the fatal crash, according to the final report released by Metro Nashville Police Department on December 28, 2009.  The story was reported in The City Paper.

The article reports that "after performing a toxicology examination, police determined Cline had an elevated level of amphetamines in his bloodstream from his prescribed medication for narcolepsy, Adderall. The same report did not find indications his prescribed epilepsy medication, Depakote, was in his system."    The article also reports that
 

Cline did have previous incidents involving seizures and car crashes. On Christmas Day 1999, Cline ran off the road and struck a utility pole after he had a seizure, and following the incident, his driver's license was suspended. His credentials were reinstated in March of 2000. He suffered another seizure while working his day job as a Franklin firefighter, "three or four years prior" to the deadly crash.

Is Cline's Estate and his employer liable for this wreck?  We need more facts.  Here is a general statement of the law under these circumstances:

 A sudden loss of consciousness or physical capacity experienced while driving which is not reasonably foreseeable is a defense to a negligence action. To constitute a defense, defendant must establish that the sudden loss of consciousness or physical capacity to control the vehicle was not reasonably foreseeable to 156 a prudent person. As a result, the defense is not available under circumstances in which defendant was made aware of facts sufficient to lead a reasonably prudent person to anticipate that driving in that condition would likely result in an accident.

In determining whether the loss of capacity or consciousness was foreseeable, pertinent, nonexclusive considerations would include: the extent of the driver's awareness or knowledge of the condition that caused the sudden incapacity; whether the driver had sought medical advice or was under a physician's care for the condition when the accident occurred; whether the driver had been prescribed, and had taken, medication for the condition;  whether a sudden incapacity had previously occurred while driving; the number, frequency, extent, and duration of incapacitating episodes prior to the accident while driving and otherwise; the temporal relationship of the prior incapacitating episodes to the accident;  a physician's guidance or advice regarding driving to the driver, if any; and medial opinions regarding the nature of the driver's condition, adherence to treatment, foreseeability of the incapacitation, and potential advance warnings which the driver would have experienced immediately prior to the accident. These factors, and any other relevant ones under the circumstances, would tend to establish whether the duty to exercise reasonable care was breached.

McCall v. Wilder, 913 S.W.2d 150, 156 (Tenn. 1995).   For a case in which a defendant successfully asserted the defense, see Beasley v. Amburgy, 70 S.W.3d 74 (Tenn. Ct. App. 2001).

Even if the driver has the defense, there is a question about the employer's potential negligence for hiring a professional driver with a history of seizures and narcolepsy.   There are lots of cases discussing this area of the law, starting at least as far back as 1936:  Wishone v. Yellow Cab Co No. 1, 20 Tenn. App. 229, 97 S.W.2d 452 (1936, cert. den. 1936).

As is often the case, the information that is publicly available does not give us enough information to evaluate the merits of the claims.  The claim against Cline can only be truly evaluated after a through review of the events leading up to the collision, the physical evidence at the scene, and the medical history of Mr. Cline.  Any direct liability of the employer can only be evaluated after an investigation of what the employer knew and should have known about Mr. Cline's history.  One wonders, however, why someone with these types of medical problems was driving an ambulance.

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 NHTSA has released a report concerning fatal crashes by young drivers.  The report shows that

1. „„Youths 15 to 20 years old represented 9 percent of the U.S. population in 2007 and 6 percent of the licensed drivers; however, 19 percent of the fatalities in the United States in 2007 were related to young-driver crashes.„„
2. Approximately two-thirds of the people killed in fatal young-driver crashes are the young drivers themselves or the passengers (of all ages) of the young drivers. „„
3. Of the passengers killed riding in vehicles with young drivers, 67 percent are in the same 15-to-20-year-old age group as the drivers.
4. „„Fifty-six percent of the fatal crashes and 57 percent of the fatalities involving young drivers occur on rural road-ways.
5. In 2007, 6,982 young drivers were involved in 6,669 fatal crashes. A total of 7,650 fatalities occurred in those crashes.
6. The 2007 National Occupant Protection Use Survey (NOPUS) states that overall restraint use has increased slightly from the previous year, to 82 percent. However, belt use among  people 16 to 24 was only 77 percent. In 2007, of the 15- to 20-year-old passenger vehicle occupants killed in all fatal crashes, 61 percent (of those whose restraint use was known) were unrestrained. Of the total fatalities in which restraint use was known in 2007, 54 percent of the vehicle occupants killed were unrestrained.
7. In 2007, 31 percent of young drivers 15 to 20 years old who were killed had blood alcohol concentrations (BACs) of .01 grams/deciliter (g/dL) or greater, and 26 percent of young drivers had BACs of .08 g/dL or greater. These figures are relatively similar to the overall driving population in which 37 percent involved BACs of .01 g/dL or greater and 32 per-cent involved BACs of .08 g/dL or greater in 2007.

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According to NHTSA’s National Center for Statistics and Analysis there were 1035 people killed on Tennessee roads in 2008.  Of those fatalities, 327 of them involved at least one driver who had a blood alcohol level of 0.8 or greater. 

This is an alcohol-related death rate of .47 people per 100 Million Vehicle Miles Traveled (VMT). The death rate per VMT is down 11.3% from a year earlier.

In 2008, Montana had the highest alcohol-impaired fatality rate in the Nation – 0.84 fatalities per 100 million VMT while Vermont had the lowest rate in the Nation – 0.16 per 100 million VMT.

In the country as a whole some 11,773 people died in alcohol-related crashes.

The holiday season brings lots of parties, and lots of parties means an increased consumption of alcohol, all too frequently to excess.  Use your head during the holiday season and, if you do not know that you can consume alcohol in moderation,  select and use a designated driver.  And, once you have figured out that you can act responsibly during the holidays, keep up the good work in the following days and years.

No one is saying that you should not be able to enjoy the holiday season and that, if you are an adult, you cannot  enjoy alcohol as a part of celebration of the season.  But you have no right to place the lives of others at risk because you choose to operate a vehicle while you are impaired.

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The United States Department of Transportation has adopted the Motorcoach Safety Action Plan following an analysis of safety data.  DOT has identified seven priority action items that will have the greatest impact on reducing motorcoach crashes, fatalities and injuries.  The items include the following:

1. Rulemaking concerning electronic on-board recording devices to monitor drivers' duty hours and manage fatigue.
2. Rulemaking to prohibit cell phones for drivers.
3. Rulemaking to require seatbelts.
4. Development of roof crush performance requirements.
5. Study stability control systems for motorcoaches.
6. Enhance oversight of carriers.
7. Establish minimum knowledge requirements for companies who seek to transport passengers.

Read the entire report here.

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Ford Motor Company has announced that  is bringing to market the world’s first automotive inflatable seat belts, combining attributes of traditional seat belts and air bags to provide an added level of crash safety protection for rear seat occupants.

“Ford’s rear inflatable seat belt technology will enhance safety for rear-seat passengers of all ages, especially for young children who are more vulnerable in crashes,” said Sue Cischke, Ford group vice president of Sustainability, Environmental and Safety Engineering.  “This is another unique family technology that builds on our safety leadership, including the most top safety ratings of any automaker.”  

Ford will introduce inflatable rear seat belts on the next-generation Ford Explorer, which goes into production next year for the North American market.  Over time, Ford plans to offer the technology in vehicles globally.

Ford explains that in everyday use the inflatable belts operate like conventional seat belts and are safe and compatible with infant and children safety car and booster seats.  In Ford’s research, more than 90 percent of those who tested the inflatable seat belts found them to be similar to or more comfortable than a conventional belt because they feel padded and softer.  That comfort factor could help improve the 61 percent rear belt usage rate in the U.S., which compares to 82 percent usage by front seat passengers, according National Highway Traffic Safety Administration data.

Safety enhancements such as these help understand while traffic deaths in motor vehicle crashes continue to decline despite the fact that there are more and more vehicles on the road and more miles are being driven.

Thanks to Georgia Injury Law Blog for being this information to my attention.

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The National Highway Traffic Safety Administration (NHTSA) recently released a report titled "Motorcycle Helmet Use and Head and Facial Injuries."  The Report has a lot of data on motorcycle crashes and the injuries the result, comparing the injuries received by those wearing helmets and those that do not.

Here are a few highlights from the report:

1. The combined data set contains information on 104,472 motorcyclists involved in crashes in these 18 States during the years 2003, 2004, and 2005.
2. In the data set, 57 percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.
3. Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.
4. As of 2007, fatalities had increased for the 10th year in a row, an increase of 144 percent compared to 1997. While there has also been an increase in motorcycle registrations during this period, the rate of increase in fatalities has been greater than that of registrations.
5. This increase in deaths has been especially marked among riders 40 and older, who now constitute approximately half of all deaths. In 1997, this older group accounted for 33 percent of rider deaths, but had grown to 49 percent by 2007. Although fatalities increased in all age groups, the largest increase has been in the group of riders over the
   age of 49; thus the mean age of fatally injured motorcyclists has increased from 29.3 in 1990 to 37.9 in 2002. The overall percentage of older riders involved in crashes has increased. While younger people are still riding motorcycles, they now constitute a smaller proportion of fatalities.
6. Despite the burden of injury associated with motorcycle crashes, at least 6 States have repealed or weakened laws that require the use of motorcycle helmets since 1995. Also, 3 States don’t have a helmet law of any kind.

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The use of seat belts continues to increase in the United States.

Seat belt use in 2009 stood at 84 percent, a gain from 83 percent use in 2008. This result is from the National Occupant Protection Use Survey (NOPUS) which is the only survey that provides nationwide probability-based observed data on seat belt use in the United States. 

Vehicle occupants in Tennessee and other southern states continue to use seat belts at a level less than the national average (82%). Those in pickup trucks  have the lowest rate of use (74%).

Here is the entire report.

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 I have written before about the dangers of texting while driving (here is a post about the danger of posed when truckers text and drive), and the Tennessee Legislature recently outlawed the practice.

Here is a game developed by the New York Times that demonstrates the danger.

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There was a big conference in Washington, D.C. this week that addressed cell phone use and texting and how these practice impaired a driver's ability to focus on the safe operation of his or her vehicle.

The two-day summit  brought together safety experts, researchers, industry representatives, elected officials and members of the public to share their expertise, experiences and ideas for reducing distracted driving behavior and addressing the safety risk posed by the growing problem across all modes of transportation. 

Department of Transportation Secretary LaHood  announced new research findings by the National Highway Traffic Safety Administration (NHTSA) that show nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone.  To further study how cell phone distraction affects commercial truck and motor coach drivers, Secretary LaHood also announced a new study the Federal Motor Carrier Safety Administration (FMCSA) is undertaking this month through June 2010. The study will help FMCSA better understand the prevalence of cell phone distraction in conjunction with crashes and near-crashes.

NHTSA’s National Center for Statistics and Analysis has prepared a report called "An Examination of Driver Distraction as Recorded in NHTSA's Databases."  The report found that 

As reported for 2008, 5,331 fatal crashes occurred that involved distraction which includes single-vehicle crashes and multi-vehicle crashes. For single-vehicle crashes, the driver was reported as distracted and thus the crash was reported as a distracted-driving crash. However, in multi-vehicle crashes, the crash was reported as a distracted-driving crash if at least one driver was reported as distracted. In some of these multi-vehicle crashes, multiple drivers were reported as distracted. In 2008, 5,501 drivers were reported as distracted in the 5,331 fatal crashes involving distraction. The portion of drivers reportedly distracted at the time of the fatal crash increased from 8 percent in 2004 to 11 percent in 2008.

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A post from the Mass Tort Defense blog highlights a real problem:  jurors conducting independent research during trials.  Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations.  The result?  A reversal of a defense verdict.

The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09).  You can read the entire opinion here.

Here is an excerpt from Sean Wajert's summary:

The state Supreme Court noted it was announcing no hard and fast rule that all such types of Internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict. Rather, the court gave deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. The trial court's award of a new trial was affirmed.
 

The reasoning: statutory language in many jurisdictions limits the type of information that a juror may be asked to provide via an affidavit or under oath at a hearing on a motion for new trial. And that's the only way, typically, for a litigant to show juror conduct. The prohibition on admitting testimony and affidavits pertains to intrinsic information, which includes statements or discussions which took place during deliberations. Testimony and affidavits concerning extrinsic information, however, may be obtained from a juror. Extrinsic information includes media publicity, conversations between jurors and non-jurors, and evidence not admitted by the court. It also includes “knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired prior to trial, experiments, investigations, news media, etc.” Secondly, the type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room.

This opinion reminds us of the need to urge the trial judge to repeatedly remind the jurors that they should not do independent research. 

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As this article in Wednesday's Washington Post explains, electric cars present a new type of hazard to pedestrians and those with impaired sight:  you can't hear them coming.   At low speeds (under 6.2 MPH)  the cars can literally sneak up on you and put you at risk of serious injury.  One study says that pedestrians face a 50%  increased risk of injury from cars that are backing-up and turning.

The article explains that the car manufacturers are thinking about putting artificial noises into these vehicles to reduce the risk of injury.  Will we see product liability claims against car manufacturers for making vehicles that are too quiet?  Federal legislation is in the works to require manufacturers to equip such cars to have non-visual alerts so that pedestrians can determine the vehicle's location, motion and speed.

The use of electric cars will make it necessary for lawyers who do car accident cases, particularly those involving pedestrians, to understand what type of motor was in the car.  One can argue that a person driving an electric car at low speeds has an increased responsibility to be on the look-out for pedestrians and use the horn to warn them as the car approaches.  The lack of engine noise deprives pedestrians of an opportunity to use one of their senses - hearing - to avoid an injury.   This is particularly true for pedestrians who are children or who are elderly, or even for adults who are obviously pre-occupied with caring for children, talking on a cell phone, or juggling packages.

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The American Association for Justice has issued a report called "Warning!  Safety Violation Ahead."  The report reveals that "a new analysis of government data reveals that more than 28,000 motor carrier companies, representing more than 200,000 trucks, are currently operating in violation of federal safety laws."    The safety violations include "defective brakes, bad tires, loads that dangerously exceeded weight limits and drivers with little or no training or drug and alcohol dependencies."   The accompanying press release indicates that

AAJ obtained data on the safety performance of U.S. trucking companies through the Motor Carrier Management Information System (MCMIS), which is maintained by the Federal Motor Carrier Safety Administration (FMCSA).  Over a million lines of data were analyzed in an effort to pinpoint just how many unsafe trucks might be on the road.

Tennessee had 107 fatalies involving large trucks in 2007.  The country as a whole had 4808 fatalities and 142,949 non-fatal crashes involving large trucks.  You can access the national database by clicking here.   You can reach the Tennessee database by clicking here.  Trucking companies are listed by city.

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Post 12 of this series on changes in Tennessee statutory law of interest to tort lawyers addresses a new law that imposes lighting requirements on bicycles.

Here is the new code section, which replaces existing section (a) of T.C.A. Sec. 55-8-177:

(a) Every bicycle, when in use at nighttime, shall be equipped with a lamp on the
front which shall emit a white light visible from a distance of at least five hundred feet (500') to the front and either a red reflector or a lamp emitting a red light which shall be visible from a distance of at least five hundred feet (500') to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle.

This has obvious implications for those representing bicyclists in nighttime crashes or defending motorists who have collided with bicyclists at night.

Clink on the link to read Public Acts 2009, Public Chapter 397.  Click on the Legislation 2009 Category to see additional changes to Tennessee statutory law in 2009.

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Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers.  As I have said in the last six posts,  you can read about additional changes in the law under the Legislation 2009 category.

Public Chapter 206  changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101  et seq, to   specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act.

I believe that this legislation is a result of a case our firm handled against such an organization in East Tennessee earlier this year.  We argued that the entity was not covered by the Act (and therefore the damage caps did not apply) because the type of entity was not specifically mentioned in the Act.  I predicated at the time we identified the issue that a legislative change would be forthcoming, and this is it.

Click at the link to read Public Acts, 2009 Public Chapter 206.

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This is the sixth in a series of posts concerning changes in Tennessee statutory law that I believe to be of interest to tort lawyers.  For more changes click on the Legislation 2009 category of this blog.

Public Chapter 201 prohibits, subject to certain exceptions,  the reading or sending of text messages while operating a motor vehicle and while the vehicle is in motion.

Here are the key provisions of the new law:

(b) No person while driving a motor vehicle on any public road or highway shall use a hand-held mobile telephone or a hand-held personal digital assistant to transmit or read a written message; provided, that a driver does not transmit or read a written message for the purpose of this subsection (b) if such driver reads, selects or enters a telephone number or name in a hand-held mobile telephone or a personal digital assistant for the purpose of making or receiving a telephone call.

(c) The provisions of this section shall only apply to a person driving a motor vehicle that is in motion at the time a written message from a mobile telephone or hand-held personal digital assistant is transmitted or read by such person.

Click on the link to read the entire text of  Public Acts, 2009 Public Chapter 201.  

Here is a link to a recent post on the greatly increased risk of driving while texting.

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Texting while driving is now illegal in Tennessee, and a study from the Virginia Tech Transportation Institute reaffirms why the law is necessary.

For truck drivers, the risk of a crash or near-crash event increases by a 23.2 times as compared with non-distracted driving.

Read the entire study here.

UPDATE:  here is a story on the study in The Washington Post:   An excerpt:

The Federal Motor Carrier Safety Administration awarded a $300,000 contract to Virginia Tech to do the study. Trucks were fitted with video cameras that captured the drivers' faces in the six seconds leading up to and during a crash or a near miss. The video showed texting to be an extremely high-risk behavior, mainly because it is associated with drivers taking their eyes off the road.

"In 4.6 out of the six seconds, they weren't looking at the road. They were looking at the device," said Rich Hanowski, director of the institute's Center for Truck and Bus Safety. "Anything over two seconds is dangerous."

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Deaths on Tennessee roads continued to decrease in 2008.  A total of 1035 people were killed on Tennessee roads in 2008, down from 1211 in 2007and 1339 in 2004.  Nationally, 37,261 people died in motor vehicle crashes in 2008.

Tennessee deaths were 16.55 per 100,000 of population, over 33% higher than the national average of 12.25 deaths per 100,000 citizens.

Of the 1035 Tennessee deaths,  605 involved single vehicle crashes.  A total of 95 of the deaths involved at least one large truck.

More details available at this site maintained by NHTSA.

Why are deaths declining?  I think the reasons are linked to safer roads, safer cars, and  increased DUI enforcement.

Note: this is my 1500th post on this blog.  Thanks to Kevin and all the folks at LexBlog for their support.

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The Manual on Uniform Traffic Control Devices defines the standards used by road managers and contractors nationwide to install and maintain traffic control devices on all streets and highways. The MUTCD is published by the Federal Highway Administration (FHWA) under 23 Code of Federal Regulations (CFR), Part 655, Subpart F.  The MUTCD has been adopted as the law in Tennessee; violation of the MUTCD is negligence per se.   Here is a list of the other states that have adopted the MUTCD.

If you have a case that involves an injury or death at a road construction site you will want to consult this manual to determine if the contractors involved followed the minimum standards established by this manual.  The manual also applies to governmental entities and others placing road signs.

Here is the 2003 edition of the  MUTCD with Revisons 1 and 2 Incorporated, effective date December 2007.   Here is the Table of Contents.  This site also has the previous editions of the MUTCD.

Tennessee's supplement to the MUTCD, "Rules for Guide Signs on Freeways, Expressways and Conventional Highways", was adopted July, 2005.  The Tennessee supplement is found in Chapter 1680-03-02 of the state rules and regulations.  Be sure to check this site to find the addition rules applying to  contractors working in Tennessee.

I have been using the MUTCD in my practice for almost 20 years, and it is my perception that the standards have been weakened over the years to make it more difficult to use the standards against contractors and governmental entities in litigation.  However, the MUTCD still sets the minimum standard, and therefore any research in this field needs to start with this document.

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Ken Shigley at the Atlanta Injury Law Blog wrote this interesting post where he advises consumers who have suffered a tragic accident what they should do if they are solicited by lawyer.

Ken offers this advice:

If you are solicited about your injury or death case, you may consider doing the following:

• Immediately call the General Counsel of the State Bar and report the improper solicitation. The phone number of the General Counsel of the State Bar of Georgia is 404-527-8720.
  
• Offer to assist in investigation of this misconduct and to file a formal grievance against any lawyer who can be proven to be participating in improper solicitation.
  
• If you ask, and if the provable facts support it, I will assist without charge in drafting a formal grievance against any lawyer who solicits you in violation of the Rules, even if you do not hire me for your injury case. (I cannot intrude on the confidential Bar disciplinary process, but I can assist in drafting your grievance.)
  
• If you need a lawyer for a personal injury or wrongful death case, make your selection on the basis of your own research about professional experience and qualifications, and recommendations by knowledgeable people whom you know and trust, rather than slick advertising or someone soliciting you directly.

Well, Tennessee lawyers, what is your experience?  Are people in your community using runners?  Have you turned these lawyers into the Board of Professional Responsibility?  Why not?

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It is not uncommon for wrecks involving tractor-trailer rigs to result in serious injury and death.  It is also not uncommon for there to be inadequate insurance coverage or other assets to make whole the victims of the trucker's negligent acts.

Thus, it is not uncommon for lawyers who represent the victims of the these wrecks to look to the conduct of others to see what role they played in contributing to the wreck.

Here is an article from FDCC Quarterly titled "'But I didn't do it!" Expanding Theories of Vicarious Liability."  Written by Robert T. Franklin, General Counsel to the Maryland Motor Truck Association, the article discusses court decisions from around the country against freight brokers and shippers.  Those of you who are plaintiffs' lawyers will not like the tone of the article (it is not particularly complimentary of the plaintiffs' bar) but there is no reason why you cannot use his research to help you serve your clients.

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The National Highway Traffic Safety Administration has reported that automobile accidents for the first 10 months of 2008 are down significantly when compared with the same period in 2007.

Fatalities are down 10% to a total of 31,110 deaths in the first 10 months in the year.  If these numbers hold until the end of the year, total deaths will be under 38,000.

Thirty years ago, in 1979, there were 51,093 deaths on our nation's highways.  Of course, the number of vehicles on the road and the number of miles driven have increased dramatically during this time?

Why the welcome decline in deaths?  No one knows for sure.   However, it is reasonable to assume that better roads, safer vehicles and an increased use of seat belts have all played a role in saving lives.

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Do you have a Sec. 1983 lawsuit for injuries to a bystander arising out of a police chase?  Are you thinking about filing one?  Are you defending one?

If the answer to any of these questions is "Yes," I encourage you to read "When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently Shocks the Conscience to Allow Recovery?" by Anna M. Krstulic.  The article appears in the Vol. 47, No. 3 of the Washburn Law Journal (Spring 2008).  Here is the conclusion she reached after studying the law in this area :

Given the high statistics of deaths and serious injuries that result from police pursuits, the Supreme Court should revisit the issue of fed­eral liability under § 1983 to define a workable standard.  Since both intent to harm and deliberate indifference can “shock the conscience,” courts must evaluate the totality of the circumstances in each case to de­termine which standard is appropriate. Police officers should be held accountable for violating pursuit regulations, and municipalities should be held accountable for failure to train their police officers. The gov­ernmental authority that police exercise in conducting pursuits must have clearly defined constitutional limitations.  As one commentator noted, “[w]hat is shocking is the continued willingness of many officers to engage in unwarranted pursuits in the face of widespread awareness in the police community itself of the likelihood of tragic conse­quences.”  [Footnotes omitted.]

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The Federal Motor Carrier Safety Administration has issued an amend to its regulations to require interstate commercial driver’s license (CDL) holders subject to the physical qualification requirements of the agency's regulations  to provide a current original or copy of their medical examiner’s certificates to their State Driver Licensing Agency (SDLA). The new regulations  also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self certification the driver made regarding the applicability of the Federal driver qualification rules.  The rule is effective January 30, 2009.

The goal of the new regulations is to help to prevent medically unqualified drivers from operating covered vehicles on our highways by giving the states the means of identifying CDL holders who are unable to obtain a medical certificate and to deter the use of false certificates.

Here is a copy of the new regulations.

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Here is an interesting article from Auto Week about new and improved (?) electronic data recorders.

EDRs currently obtain data from airbags, yaw and stability sensors, antilock brakes, traction controllers, throttle controls and engine monitors.  They initiate only when sensors indicate that a crash is imminent or has occurred.  Some also keep data such as secondary impacts and vehicle roll angle for as much as five seconds after a crash.

However, the new version of the "black boxes,"  called vehicle status data recorders (VSDRs), run constantly and collect additional data such as wheel and engine speed.  Used by Nissan,  VSDRs  gathers and stores vehicle operating data.  Some fear that the information can be used for voiding warranties.  Others have privacy concerns.

The data captured by these devices will play an increasing role in motor vehicle litigation.

Download file

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A defendant is permitted to argue that the light from the setting sun hindered his vision and that he was not negligent in failing to see (and then striking) plaintiff's car.

The Kansas Supreme Court rejected the argument of the plaintiff that the defendant was negligent as a matter of law.   The Court said

under Kansas law, when a constant condition exists that knowingly blocks or impairs a driver's vision, the decision to continue driving without exercising reasonable diligence is negligence as a matter of law.  The so-called blinding light rule from Diaz [206 Kan. 650], however, provides an exception in cases where a driver's vision is suddenly blocked by some action beyond his or her control. Under such circumstances, the driver is not necessarily negligent for something that occurs while the driver is temporarily blinded. In other words, a sudden occurrence may create a factual question regarding the reasonableness of the driver's behavior in reacting to the temporary condition.

The Court held that the issue was one for the jury.

The case is Deal v. Bowman, No. 96,868 (Kan. S. C. Aug. 1., 2008).  Read it here.

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Grandstaff v. Bowman, No. E2007-00135-COA-R3-CV,  (Tenn. Ct. App. May 29, 2008), is a case that reminds careful readers of the perils of filing a personal injury case on the eve of the statute and then simply sitting on it.  As a result of this conduct, the plaintiff lost the opportunity to add a corporate defendant who employed the individual defendant at the time of the car wreck.

Plaintiff attempted to use Sec. 20-1-119 to get around the problem; Judge Susano correctly ruled the statute inapplicable. 

Plaintiff then tried to say that he did not discover the existence of the corporate defendant until a date within one year of the date of filing.  Not a bad argument - unless one considers these facts:

"The record before us, viewed in the light most favorable to the plaintiffs, demonstrates a lack of due diligence by the plaintiffs in investigating their case during the 28 months between the car accident with Bowman and the discovery that Bowman was allegedly acting within the scope and course of his employment with Hardee’s. The plaintiffs’ affidavits indicate that Bowman’s employment status was not immediately apparent from the circumstances of the accident, and that Bowman did not volunteer any information about this issue while conversing with the plaintiffs after the crash. However, there is no indication that the plaintiffs ever asked him whether he was “on the job,” either in the accident’s immediate aftermath or at any subsequent time. In fact, the facts in this record show no effort by the plaintiffs to ask Bowman or his counsel any pertinent questions during the nearly 2 1/2 years between the accident and the receipt of the letter implicating Hardee’s."

OMG.

Lessons:  1.  Do reasonable pre-suit discovery to determine, inter alia,  whether the individual defendant was working at the time of the incident..    2.  Serve written discovery with the complaint.  3.  Include interrogatories designed to help you learn whether the individual defendant was on the business of another at the time of the incident.  4.  Insist on timely answers to those interrogatories.  5.  Clear up ambiguities in a deposition if necessary.  6. Promptly add the employer defendant if necessary. 

Take these steps and you will sleep soundly.

Read the opinion here.

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The Court of Appeals for the Western Section has said that a plaintiff in a wrongful death case has made out a claim of negligent entrustment of a vehicle against the parents of a drunk driver.

Here are some essential facts viewed in the light most favorable to the plaintiff: 

"Like the defendant in  [v. East Tennessee Pioneer Oil], in this case the [defendant]Johnsons clearly provided and controlled the means by which [their son the defendant] Jack was able to operate the vehicle. Regardless of whether the Johnsons purchased the vehicle from Ms. King and subsequently entrusted it to Jack,   [The plaintiff] Mr. Watrous has presented evidence that the Johnsons repaid a loan Jack had taken against the title to the vehicle the day before it became due. The Johnsons do not dispute that, had they not paid off the title loan, the Concorde would nave been repossessed by Tennessee Title Loans. Thus, as Mr. Watrous asserts, the Johnsons essentially “re-purchased” the Concorde from Tennessee Title Loans and provided it to Jack. Further, it is undisputed that Jack had no access to funds other than his student loans and those provided by the Johnsons, that the Johnsons provided Jack with the funds to repay loans that had become due, and that the Johnsons paid virtually all of Jack’s expenses. The Johnsons do not dispute that they had knowledge of Jack’s history of driving under the influence, or that Ms. Johnson provided Jack with a check in the amount of $100 to be cashed at a gas station the night on which Jack struck and killed Ms. Watrous."

The case is Watrous v. Johnson,   No. W2007-00814-COA-R3-CV  (Tenn. Ct. App. Nov. 17, 2007).  Read it here.

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Here is a handy little decision that reminds of the existence and limits of the suspension statute.

You know the suspension statute.   It tells us that  "[i]f at any time any cause of action shall accrue against any person who shall be out of this state, the action may be commenced within the time limited therefor, after such person shall have come into the state; and, after any cause of action shall have accrued, if the person against whom it has accrued shall be absent from or reside out of the state, the time of absence or residence out of the state shall not be taken as any part of the time limited for the commencement of the action. " T.C.A. § 28-1-111 (2000).

In Jones v. Johnson. No. W2006-01859-COA-R3-CV (July 16, 2007) the Court of Appeals for the Western Section applied the statute in a personal injury case.   You will recall that "the suspension statute is inapplicable to toll a statute of limitations where there is a valid method of service of process on an out-of-state defendant."  Arrowood v. McMinn County, 121 S.W.2d 566, 568-69 (Tenn. 1938).  However, "[i]n Lam v. Smith, 891 S.W.2d 207 (Tenn. 1994), the Supreme Court recognized an exception to the general Arrowood rule in cases where (1) the plaintiff lacked knowledge that the defendant is an out-of-state resident, and (2) the plaintiff had exercised due diligence in trying to ascertain the location of the defendant, but nevertheless remained unaware of the defendant’s nonresident status."

Here is the bottom line of Judge Kirby's opinion:

"In this case, it is undisputed that the return of the original summons notified the Plaintiffs that Johnson had moved from Madison County, Tennessee, to Powder Springs, Georgia. Thus, only a few days after filing suit, the Plaintiffs were made aware that Johnson was a non-resident and had been for three months. Clearly, the Plaintiffs have not met the first prong of the Lam exception, namely, that they lacked knowledge that Johnson was an out-of- state defendant. Regarding due diligence, it is undisputed that the Plaintiffs made no attempt to have an alias summons served on Johnson within a year after the original summons was returned, despite having been informed that Johnson had moved to Powder Springs, Georgia. In December 2005, the Plaintiffs inexplicably made a second attempt to effect service of process in Tennessee, despite having been informed that Johnson was living in Powder Springs, Georgia. Cox’s affidavit is best characterized as vague regarding her efforts to find Johnson. She notes that, when the first summons was returned unserved, her “staff searched for [Johnson] using various internet and other sources on many occasions.” There is no affidavit from the unnamed “staff” and the “other sources” are likewise not identified.

Moreover, as the trial court pointed out, the Plaintiffs were in contact with Johnson’s liability insurance carrier, and the carrier would have been required to disclose her address to them pursuant to Tennessee Code Annotated § 56-7-1104 had the Plaintiffs merely requested the information.  Cox’s affidavit mentions no attempts to obtain Johnson’s address from this source. Under these circumstances, the undisputed evidence shows that the Plaintiffs did not exercise due diligence in ascertaining Johnson’s address, and the exception in Lam is not applicable. See Ballard v. Ardenhani, 901 S.W.2d 369, 372-74 (Tenn. Ct. App. 1995). Therefore, the suspension statute does not apply in this case, and summary judgment in Johnson’s favor based on the statute of limitations was appropriate."  [Footnote omitted.]

Read the entire opinion here.

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Walk into any courtroom in the state in any given week and there is a one-day trial underway in a soft tissue injury case.  A defense lawyer is standing before the jury, waving a photograph of the plaintiff's vehicle and saying "How can the plaintiff be hurt?  The rear bumper of her car was barely dented!"

Can a defense lawyer do that?  Can he or she argue that the plaintiff was not hurt because the property damage is minimal?  Or does a defendant need expert testimony to make that argument? Indeed, does the defendant need expert testimony to even introduce the photos in such a case (assume no claim for property damage)?  How are those photos relevant?

The New Jersey Supreme Court has just ruled that such photos are admissible and that it is permissable for defense counsel to make an argument like the one suggested above.  Why?

"[B]ecause, in most cases, there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder. We acknowledge those instances where slight force causes grave injury -- a simple misstep off a sidewalk curb resulting in a compound, complex fracture of the leg –- as well as those where great force results in little or no injury -- the child who miraculously survives a fall out of a high-rise window, or the driver who walks away unscathed from a hideous car crash. Those instances inhabit, however, the margins of common knowledge. Juries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury."

The Court did note that "a party opponent remains free to offer expert proofs for the purpose of persuading the factfinder to overcome an absence of proportionality between the force of the impact and the cause and severity of the resulting injuries. Conversely, a party proponent may tender its own expert proofs to further support the proposition in its case-in-chief -- either that slight impact force results in no or slight injury, or that great impact force results in great injury -- or to rebut its opponent’s assertions. Such expert proofs, however, address the weight to be given to photographs of impact, not their admissibility." 

However, the Court went on to say as follows: "[W]e acknowledge those cases outside the heartland of common knowledge where slight force causes great injury or where great force causes little injury. In order to account for those possibilities, where photographs of vehicle damage are admitted, the trial judge should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff’s injuries resulting from the accident."

The case is Brenman v. Demello, A-13-06 (N.J.S.C. May 30, 2007).  Read the opinion here.

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The L.A. Times  has written a major story on safety problems at U-Haul.

An excerpt:  "U-Haul, the nation's largest provider of rental trailers, says it is "highly conservative" about safety. But a yearlong Times investigation, which included more than 200 interviews and a review of thousands of pages of court records, police reports, consumer complaints and other documents, found that company practices have heightened the risk of towing accidents."

And here is an interesting tidbit: "JOHN ABROMAVAGE, U-Haul's engineering director, once testified that as a witness for the company in some 200 cases, he had never seen an accident he regarded as U-Haul's fault."

Read the entire story here.

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The Federal Motor Carrier Safety Association recently released a Large Truck Crash Causation Study in response to a federal law that  required the organization "to determine the causes of, and contributing factors to, crashes involving commercial motor vehicles."

From the Executive Summary:

"A nationally representative sample of large truck fatal and injury crashes was investigated during 2001 to 2003 at 24 sites in 17 States. Each crash involved at least one large truck and resulted in at least one fatality or injury. Data were collected on up to 1,000 elements in each crash. The total sample involved 967 crashes, which included 1,127 large trucks, 959 non-truck motor vehicles, 251 fatalities, and 1,408 injuries.
An action or inaction by the drivers of the truck or the other vehicles involved were important reasons leading to crashes in a large majority of the cases. Driver recognition and decision errors were the type of driver mistakes coded by crash investigators or law enforcement officials most often for the trucks and passenger vehicles. Truck drivers, however, were coded less frequently for both driving performance errors and non-performance problems (e.g., asleep, sick, incapacitated) than passenger vehicle drivers. In crashes between trucks and passenger vehicles, driving too fast for conditions and fatigue were important factors cited for both drivers. However, fatigue was coded twice as often for passenger vehicle drivers and speeding more often for truck drivers.
Brake problems were coded for almost 30 percent of the trucks but only 5 percent of the passenger vehicles. Roadway problems were present in 16 percent of the two-vehicle cases, and adverse weather conditions were present in approximately 13 percent of the crashes. Interruption in the traffic flow (previous crash, work zone, rush hour congestion, etc.) was coded in almost 25 percent of the two-vehicle crashes."

Read the report here.

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Some people have found a way to turn a police chase case into a Sec. 1983 action.  It was always tough - and it just got tougher.

Here is the issue as stated by Justice Scalia:  "We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place afleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?"

The bottom line:  "The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. [Officer] Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment."

The case is Scott v. Harris,   No. 05–1631  (April 30, 2007).   Read the opinion here.

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What causes truck wrecks?  According to Ron Miller, a trial lawyer in Maryland, the Federal Motor Carry Safety Administration’s 2006 report shows  there are approximately 141,000 truck crashes every year. In 77,000 of these truck accidents - more than half - fault was attributed to the truck driver.

Ron's post at The Maryalnd Injury Lawyer Blog lists the top ten causes of the wrecks caused by truckers as follows:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

Thanks for the info, Ron.

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The Truck Safety Coalition has released data showing the number of fatal truck crashes by state.  Tennessee had 156 fatal crashes in 2005 and 717 in the five-year period from 2001-2005.  By comparison, Alabama had 122 fatal crashes in 2005 (706 in  five-years), Kentucky had 124 (596), Arkansas had 116 (531), Mississippi had 91 (445) and Georgia had 229 (1162).

Tennessee had 2.62 fatal crashes per 100,000 people, the 15th highest rate in the country.  Wyoming was the worst at 6.09.  Rhode Island had the best rate at .09.   Eight states in the Southeast were amoung the twenty states with the highest death rates.

Another 114,000 persons were injured in truck crashes in 2005.

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The Sixth Circuit Court of Appeals has affirmed a verdict in a case where a bus driver was attacked by a knife-wielding passenger, resulting a bus crash that resulted in several injuries and the death of the bus driver.  A trial resulted in a verdict for the plaintiff passenger.

First, the defendant challenged the admissibility of plaintiff's experts; the Court of Appeals found no error in permitting the experts to testify.

Second, the defendant argued that prior incidents should not have been admitted into evidence.  This is the Court's ruling on this point:

"In the case at bar, Plaintiff sought to introduce evidence of prior incidents on Defendant’s buses to show Defendant had been on notice of incidents likely to lead to the kind of injury suffered by Plaintiff. Plaintiff suffered injury when Defendant’s driver lost control of the bus after being attacked by another passenger on the bus, and after that passenger attempted to take control of the wheel. The prior incidents admitted by the district court were substantially similar to the October 3, 2001 incident because they involved either passenger interference with the bus driver, or a passenger’s attempt to take control of the bus’s steering wheel or brakes. Those incidents therefore occurred under “similar circumstances” or “share the same cause” as the October 3, 2001 incident."

There are several other points raised in the opinion, but these are the most important ones.

The case is Surles v. Greyhound Lines, Inc.,  Nos. 05-6713/6743 (6th Cir.  January 18, 2007).  Read it here.

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The New York Times did a great piece on the regulation of the trucking industry yesterday.

One blurb:  "In loosening the standards [applicable to the trucking industry], the Federal Motor Carrier Safety Administration was fulfilling President Bush’s broader pledge to free industry of what it considered cumbersome rules. In the last six years, the White House has embarked on the boldest strategy of deregulation in more than a generation. Largely unchecked by the Republican-led Congress, federal agencies, often led by former industry officials, have methodically reduced what they see as inefficient, outdated regulations and have delayed enforcement of others."

If you are involved in trucking litigation you will enjoy this five-page article.

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Side airbags work.  That is the conclusion of the Insurance Institute for Highway Safety.

A recent study reports that "Side airbags that protect people's heads are reducing driver deaths in cars struck on the near (driver) side by an estimated 37 percent. Airbags that protect only the chest and abdomen but not the head are reducing deaths by 26 percent. "

According to the study, if every passenger vehicle would have side airbags with head protection 2000 lives would be saved a year.

Read more here.

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The American Trucking Associations has petitioned the National Highway Traffic Safety Administration to limit the maximum speed of large trucks at the time of manufacture to no more than 68 miles per hour.  ATA also petitioned the Federal Motor Carrier Safety Administration to prohibit the tampering or adjustment of the speed limiting devices, known as speed limiters (or governors), to greater than 68 miles per hour.

Research indicates that speed is a more significant factor in crashes involving trucks than any other factor that currently receives a larger proportion of government attention and resources.

Here is a copy of the Rulemaking Petition.

One disappointing part of the Petition:  When listing the benefits of adopting the proposed regulations, the ATA does not mention the benefit to society of not having people killed or injured on the nation's highways.  Shouldn't that be a primary consideration in determining whether to adopt this Petition?  To be fair, the reduction in deaths and injuries is mentioned in the Petition, but not in the "Costs and Benefits" section of the document.

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Everyone knows that auto death rates are decreasing.  But why?

This study tells us that the reason is safer autos.  Issued by the Insurance Institute for Highway Safety, the study says that "an increasingly dangerous traffic environment has been offset since 1994 only because people are driving vehicles that are more protective...."

The press release indicates that  the full report, "Trends over time in the risk of driver death: what if vehicle designs had not improved?" by C.M. Farmer and A.K. Lund will be published in the journal, Traffic Injury Prevention, later this year.

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A recent study reports about the risk of lack of sleep on commercial drivers.  In an article entitled "Impaired Performance in Commercial Drivers: Role of Sleep Apnea and Short Sleep Duration" researchers from the University of Pennsylvania  "examined 406 truck drivers and found that those who routinely slept less than five hours a night were likely to fare poorly on tests designed to measure sleepiness, attention and reaction time, and steering ability. Drivers with severe sleep apnea, a medical condition that causes a poor quality of sleep, also were sleepy and had performance impairment," according to a summary of the article at Insurance Journal.

The Penn report indicates that 5600 people per year are killed in wrecks with commercial trucks and that many of them involve drivers falling asleep at the wheel.

The Penn report is published in American Journal of Respiratory and Critical Care Medicine.  The article can be accessed here.

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Motorists Beware!   A new study reports that 21% of drivers in Tennessee are uninsured.  Read about the study here.

I would love to know what percentage of the drivers that have insurance have only the minimum limits ($25,000 per person, $50,000 per accident). 

Use this information to educate your clients about the need to purchase adequate levels of uninsured / underinsured motorist coverage.  I have always thought it was an outrage that an agent could persuade a person to waive UM / UIM limits equal to that of their liability limits.  While I agree that the limits purchased should be a made of choice, I also think that the agent should be required to say, in writing, what it would cost the customer to have UM / UIM limits equal to their liability limits.   Such a rule would ensure that the consumer made an informed decision about what to purchase.  I also think that the customer should be required to waive equal limits in writing every year, not just once during the life of the relationship.

Any consumer who understood the risk would always purchase equal limits - the cost is not that great.  UM / UIM is perhaps the least expensive insurance you can buy.

Thanks to the Kentucky Injury Law Blog for telling me about this study.

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Allstate is notorious for its hardball approach to handling claims. Now, Business Week Online tells about a new book "From Good Hands to Boxing Gloves" that will reveal the role that the consulting firm McKinsey & Co. played in changing the business practices of Allstate.

An excerpt from the article: "Collectively, the documents (obtained by the author of the book) present a portrait of business strategies that are at odds with the insurer's carefully cultivated public image. Rather than simply rushing to the scene of an accident and doling out cash, Allstate deploys a variety of systems set in place by McKinsey to make sure it pays the minimum necessary -- and it plays hardball with those who seek more."

Another: "One of the key elements of McKinsey's plan was reducing the number of claimants who turn to attorneys after an accident for help in collecting on their insurance. The consultants even forecast what the potential gains in this area would mean for Allstate's stock. A 25% drop in attorneys appearing in several categories of cases could add $1.60 to Allstate's share price, one slide states, according to [book author David] Berardinelli's notes."

Berardinelli is a Santa Fe lawyer who has bad faith claims against Allstate.

I encourage you to read the entire article.

I can't wait to read this book. It will be out later this year.

Thanks to P.I.S.S.D. for informing me about this article.

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The FMCSA has a new study out that "[d]rivers of large trucks and other vehicles involved in truck crashes are ten times more likely to be the cause of the crash than other factors, such as weather, road conditions, and vehicle performance ...."

A quick summary from the press release: "The study, conducted with the help of the National Highway Traffic Safety Administration, investigated a national sample of fatal and injury crashes between April 2001 and December 2003 at 24 sites in 17 states. Each crash involved at least one large truck and resulted in at least one fatality or injury. The total sample of 967 crashes included 1,127 large trucks, 959 non-truck motor vehicles, 251 fatalities, and 1,408 injuries. Action or inaction by the driver of either the truck or other vehicle was the critical reason for 88 percent of the crashes."

Here is the study.

An interesting quote from the Executive Summary: "Brake problems were coded for almost 30 percent of the trucks but only 5 percent of the passenger vehicles. Roadway problems were present in 16 percent of the two-vehicle cases, and adverse weather conditions were present in approximately 13 percent of the crashes. Interruption in the traffic flow (previous crash, work zone, rush hour congestion, etc.) was coded in almost 25 percent of the two-vehicle crashes."

I have handled tractor trailer cases for 25 years and found this study fascinating.

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Here is another decision that makes it reversible error to show photos of vehicles involved in a wreck, point out minor property damage, and then argue that the plaintiff could not have been injured.

The New Jersey Appellate Division said this:

"Given the narrow field of dispute, the photographs served no apparent purpose other than to suggest the accident was low-impact and minor and, therefore, not the cause of plaintiff's condition. For reasons already advanced, we find this inference impermissible absent an expert foundation. And lest there be any doubt as to defendant's real purpose, counsel referred to the accident as a "fender bender" on three separate occasions in her opening and closing remarks. Clearly, this argument played a prominent role in the defense, especially in light of the polarity of medical views on causation, and was identical to that found objectionable in Davis. By the same token, nowhere in her argument did defense counsel explain to the jury how, based merely on the extent of property damage, a fact finder could assess the origination of plaintiff's injury or whether any pre-existing condition she may have had was exacerbated by the impact. In any event, defense counsel's argument clearly transgressed what was to be, at least according to the trial court's tacit understanding, the limited use to which the photographs would be put. Even more significant, however, counsel's commentary contradicted her own medical expert who opined no such connection or correlation between impact and injury exists. Under the circumstances then, we conclude that the introduction of the photographs without appropriate limiting instruction, when considered together with counsel's uncured comments thereon, allowed the jury to speculate, unguided by any expert basis, as to the cause of plaintiff's injuries, and thus created a clear capacity for an unjust result."

The opinion includes authority pro and con from other jurisdictions.

The case is Brenman v. DeMello; read the opinion here.

Here is an earlier post on the same subject concerning a case out of Maryland.

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Sorry for the delay in posting today. I caught a red-eye flight last night and spent 12 hours traveling.

Public Citizen and four other entities have launched another court challenge to the hours-of-service rules that have been promulgated by the FMSCA.

From Public Citizen's press release: "More than 5,000 people are killed each year in large truck-related crashes and more than 110,000 are injured," said Public Citizen President Joan Claybrook. "That FMCSA chose in both rules to expand driving hours is astounding given its statutory mandate to make safety its highest priority and Congress's specific directive to the agency to reduce fatigue-related incidents. We fully expect the court to find once again that this rule violates the agency's clear assignment to put safety first."

Here is a copy of the petition.

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Read here about the indictment the executive of the charter company that operated the bus that exploded Sept. 23 on Interstate 45 in Texas, killing 23 residents of a Bellaire nursing home who were fleeing Hurricane Rita.

If he is found guilty, what will his punishment be? Will it be the nine years that Anna got for extortion? Should it be less? Should it be more?

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Here is some interesting information on the realtionship between where people live and their tendancy to be involved who tend to be in car wrecks.

A sample: "People who live within one mile of a church are 10 percent less likely to have an accident resulting in a property damage claim than if they lived one more than one mile from the church."

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My daughter is 14 and is very excited about getting her driver's license. The idea terrifies me like it does most parents.
Here are some statistics about car wrecks and teenagers that will not do you much good at the office but may help you talk about safe driving with your teenager.

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Do you want to know how many people died in traffic wrecks in Tennessee? In North Dakota? On two-lane roads? On interstates?

If so, see this report from NHTSA and the United States Department of Transportation.

An excerpt:

"In 2004, the Nation's crash fatality rate per 100 million vehicle miles of travel was the lowest (1.46) since record keeping began 30 years ago and remained below 1.50 for the second consecutive year. 2004 was also the second year in a row that fatalities from motor vehicle crashes declined. The number of police-reported motor vehicle crashes occurring on our highways dropped to
under 6.2 million from over 6.3 million in 2003, and persons injured in these crashes continued a steady decline. On average, a police-reported motor vehicle crash occurred every 5 seconds, a person was injured every 11 seconds, and someone was killed every 12 minutes."."

Here is some good news: "alcohol-related fatalities declined significantly in 2004, to 16,694, the second consecutive year in which alcohol-related fatalities declined.
Most single vehicle deaths occurred - Surprise! - between Midnight and 3:00 a.m. and 77% were alcohol-related.

In Tennessee there were 1144 fatal crashes in 2004 and 145 occurred on interstate highways.

And on and on. More data than you ever thought was available.

Thanks to SafetyLex for bringing this report to my attention.

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The Court of Appeals of Washington has ordered a new trial in a criminal case in which the State admited into evidence computer-generated simulation evidence using Version 6.2 of a program called PC-CRASH to prove that defendant had been the driver of the vehicle involved in the wreck.

The Court held that "we cannot be confident that a scientific consensus has been achieved among accident reconstructionists that PC-CRASH is capable of accurately performing the predictions to which the State's expert witness testified." Therefore, the Court reversed a jury verdict against the defendant and remanded the case for a new trial.

More specifically, the Court said that "[j]urisdictions that have addressed the issue uniformly hold that the admissibility of computer-generated models or simulations (as opposed to animations) as substantive proof or as the basis for expert testimony regarding matters of substantive proof is conditioned upon a sufficient showing that (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party so that they can be challenged); and (3) the program is generally accepted by the appropriate community of scientists for use in the particular situation at hand. [Citations omitted.] We agree with these courts, and hold that in Washington, computer-generated simulations used as substantive evidence or
as the basis for expert testimony regarding matters of substantive proof must have been generated from computer programs that are generally accepted by the appropriate community of scientists to be valid for the purposes at issue in the case."

The State used the evidence to prove that the defendant was driving the vehicle and the Court held that "we cannot countenance the State's use of such evidence here or in future cases and that will remain true until such time as the State demonstrates that the relevant scientific community has reached consensus with respect to the validity and reliability of the PC- CRASH program used by Heusser, for the specific purposes here at issue." The Court noted that in another case "the PC-CRASH program was used to predict movement of the vehicle in a single-impact crash, and the relevant scientific community of accident reconstructionists agreed that
the computer program was reliable for that purpose" but noted that the program was being used for a different purpose in this case.

Of course, this is a criminal case. but the evidentiary principles are the same as they would be in a civil case.

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An appellate court in California reversed a jury verdict because of a trial court's refusal to instruct the jury pursuant to the federal standard of care requiring "extreme care" as opposed to the reasonable care standard. The appellate court held that this was prejudicial error requiring a remand for a new trial.

California law has a negligence per se just as we have in Tennessee. It allows violations of federal regulations to give constitute negligence per se.

Read this:

"Comparing the basic speed law instruction utilized by the court with the federal regulation proposed by appellants, each requires the operator of a vehicle to consider inclement weather and additional hazards which may result from operation of a vehicle under such conditions. Each suggests that the operator must increase his or her diligence in how the vehicle is operated. But the standard of diligence in each is different. The basic speed law requires only that a driver shall not drive at a speed "greater than is reasonable or prudent having due regard for weather . . . ." (Veh. Code, ㋔ 22350, italics added.) The federal standard requires the driver of a commercial vehicle to use "extreme caution" and to reduce speed when hazardous conditions exist. (49 C.F.R. ㋔ 392.14.)"

Here is the precise language from Section 392.14 in context: "Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist."

Thus, the Court ruled, the trial judge was required to instruct the jury on the higher standard set forth by federal law and the failure to do so was negligence.

This is an important case. Lawyers would be advised to ask the Court to instruct the jury on the federal regulation and the fact that the violation of the regulation is negligence per se.

Read the opinion in Weaver v. Chavez here.

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Tennessee has the 13th highest truck crash death rate in the nation, a rate of 2.63 deaths per 100,000 population. This means over 150 people die in Tennessee each year in truck-related crashes.

The Tennessee death rate is 30% higher than the national average. For a listing of the death rates in all states, click here. Almost half of the top 13 states are in the South.

These statistics are released at the same time the Federal Government is taking steps to allow truck drivers to drive an extra 17 to 18 hours per week. Fatigue plays a significant role in truck crashes; the new rules will increase the likelihood that tired truckers will be operating big rigs carelessly.

Thanks to Public Citizen for bringing this information to our attention.

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Can a passenger of one vehicle sue a passenger of a different vehicle alleging that the latter negligently told the vehicle driver that it was safe to back up when, in fact, it was not, and the resulting wreck injured the former?

This is a classic duty question - it has been certified to the Florida Supreme Court. Read the opinion here.

Remember that even if there is not a duty in general there may well be a duty because of the "gratuitous undertaking" of giving the driver advice. But that gives rise to a duty issue itself. Why? Because while the passenger who undertook the duty to "be on the lookout" for the driver of his car would clearly owe a duty to that driver and probably other passengers in that car there is still an issue of whether the passenger would owe a duty to the passengers of other vehicles.

Thanks to Matt at Abstract Appeal.

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The Tennessee Supreme Court has ruled that the "family exclusion" that exists in every motor vehicle insurance policy I have ever seen is not void as against Tennessee law or public policy. The case came before the Court on a certified question from a federal district court in East Tennessee.

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You may remember that the Congress passed a $287,000,000,000 transportation bill last month. What you may not have known is that a tort reform measure was slipped into the bill.

Transportation bills gives "pork" a bad name. Historically, they have been filled with local projects of questionable value. But now we have a Republican-controlled Congress that never misses the opportunity to give a get-out-of-litigation-free card to some special interest group. This gift in this bill - the elimination of vicarious liability for auto rental and leasing companies for 16 states and the District of Columbia.

In these states - Tennessee is not one of them - the leasing company was liable for the acts of the lessee. The cost of insurance was build into the cost of the leasse. No more.

Christmas in July. What about that states' rights thing?

And while I am complaining about the transportation bill, don't you think that given the devestation of Katrina it would be wise to rescind the entire bill, save only those projects that have already started? Katrina will cost the federal government $200 billion or more. We don't have the money to spend. It seems to me that we should cut somewhere, and one place we can cut is this recently passed bill. I see no reason to continue to pile on the national debt when we can simply bear the pain right now by eliminating a bunch of the projects in this bill.

To be sure, some of those projects are sorely needed. But, just like a family that has to make (what should be) an easy decision about chosing between paying the mortgage and going to Disneyworld, we as a society need to make choices about how we spend limited tax dollars.

The folks in the Gulf need help and we should give it to them, but we should not put that help on a credit card and let our grandchildren get stuck with the payments, especially when we have yet-to-delivered Christmas presents in the closet and the return receipt in our billfold.

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The Bush Administration is pushing forward with new trucking rules, even though the D.C. Circuit Court of Appeals found a similar set of rules "arbitrary and capricious" and "a threat to driver's health" just last year. The rules come into effect October 1, 2005.

Here is a summary of the "highlights" of the new rules, as prepared by Lawyers Weekly U.S.A. :

*Increase the limit for consecutive driving for long-haul truckers to 11 hours, up from the 10-hour limit that had been in effect until 2003. However, they also shorten the total workday (including non-driving time) to 14 hours, down from 15.

* Eliminate a requirement that short-haul drivers log the number of hours a day that they work.

Public Citizen and several other groups had successfully challenged a prior substantially similar version of the rules but has not indicated whether it will challenge these.

Read the entire article here.

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The Maryland Court of Appeals has ruled that a defendant may use photos showing relatively little property damage to a vehicle to argue that the plaintiff did not have a significant personal injury.

The decision is Mason v. Lynch. There is also a great dissent on the issue; it makes the point that there is a substantial body of scientific literature that actually disproves the argument that "minor" impacts do not cause serious neck injuries. Accordingly, the dissent argues, a lawyer should not be able to make the argument that an injury is not real or significant simply based on the lack of property damage seen in photographs.

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A federal court jury in Winchester has returned an $8M verdict against Greyhound for injuries to a passenger after a man attacked the driver who then lost control of the bus. You can read another press report of the story here.

The injuries were substantial; the plaintiff had some $1.6M in medical expenses.

The Plantiff was able to prove that the company knew of at least 43 prior incidents where passengers attacked drivers and yet it had done nothing to protect its drivers.

This verdict tells us that jurors recognize in a modern society people with the knowledge of the risk of criminal acts of others have a responsibility to take reasonable steps to prevent those criminal acts from occurring.

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I ride a BMW 1200 CLC. My wife rides a Harley Sportster. I did not ride until I hit the age of 45 but I must confess there is nothing quite like riding a motorcycle on a country road on a fall or spring day. It is a blast - a true escape.

It would be fun to ride without a helmet. On the other hand, it would also be stupid. Here is a recent article that demonstrates the risks of riding without one as confirmed by two recent articles.

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This article in the Tennessean is a tragic reminder of how quickly a life can be lost as a result of carelessness.

A truck driver for Diamond Logistics fell asleep at the wheel, went into a parking lot at a local market, and killed one man and injured three others.

A review of the records of the driver and Diamond Logistics will reveal whether the trucker was in compliance with the law at the time he was driving and whether Diamond Logistics was aware of a pattern of deviations from the law, if any. We have had considerable success evaluating driver logs and other materials and proving a pattern and practice of unlawful driving leading to hazardous situations. Hopefully, someone will quickly get to the bottom of this situation and find out what happened in the days and weeks preceeding the wreck.

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There is a new study out that maintains that relatively minor changes in highway design can say lives.

The study, by the Insurance Information Institute, explains that "urban roads 'weren't built to accommodate today's heavy traffic. They've evolved as traffic has increased, and they haven't always evolved in the best way to enhance safety and ensure a smooth flow of traffic.'" A news report about the study says that "the majority of traffic fatalities happen on rural roads, but safety experts say urban arteries remain dangerous. About 8,000 traffic fatalities and more than 1 million injuries occur annually on urban roads."

The article gives several examples of how spending a relatively small amount of money can improve safety.

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Good news. Overall, the Department of Transportation said alcohol-related fatalities fell 2.4 percent, from 17,105 in 2003 to 16,694 in 2004. 42,636 people died on the nation's highways in 2004, down 248 - or 0.6 percent - from the previous year. Read a more complete summary of the data here.

There was some bad news. Motorcycle death rates increased for the seventh straight year. Rollover deaths also increased.

I would like to think that the tort system has contributed to a decline in the death rate. Highways and vehicles are safer in part because litigation has forced the issue with government agencies and manufacturers and brought problems to light. To be sure, consumer groups have also played a role in advocating for better roads and vehicles, but the tort system provides the economic incentive for people to do the right thing.

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General Motors has been the leader in putting event data recorders, or so called "black boxes," in its passenger vehicles. These devices record a vehicle's speed, brake systems, seat belt status, and other information in the seconds before an airbag is deployed. Since 1990, GM has been progressively increasing the amount of information that the devices store. The National Highway Transportation Safety Administration published a paper analyzing GM's event data recorders, including some great detail on the information stored in each variation of the devices and a technical explanation for how that information is recorded. Other manufacturers are following GM's lead, so black box data can be an issue in any case involving a late model car.

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So-called black boxes capture lots and lots of data of importance to lawyers in motor vehicle litigation. The information contained in these devices can literally make or break a case. In trucking cases, log books are now kept on computer by some trucking concerns.

This article talks about the fight in the trucking industry over these on-board data recorders, an issue coming to a head because the federal government may order that trucking logs be keep via computer rather than paper.

As one would expect, major resistance is coming from owner-operators. Many large trucking companies who insist that their drivers follow the law are already using on-board recording devices.

We will keep an eye on this issue in the coming months.

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The Manual on Uniform Traffic Control Devices is available, free of charge, online at the Federal Highway Administration website. The site not only has the latest 2003 edition, but goes back as far as the 1993 revisions. You should be able to find the right edition to address any pending or potential claim for a roadway that is dangerously unmarked. Compliance with the MUTCD is necessary, but not always sufficient. The MUTCD and the law still require reasonableness by a contractor or highway planner.

The MUTCD is incorporated by reference into the regulations of the Tennessee Department of Transportation. Therefore, violation of the MUTCD is negligence per se.

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The most famous plaintiff in the history of Tennessee tort law is Harry Douglas McIntyre, of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), fame. For those of you who are not from Tennessee, Mr. McIntyre was the gentleman whose case brought the law of comparative fault to Tennessee. The Tennessee Supreme Court decided his case on May 4, 1992.

The question for the day is this:

How many beers did Mr. McIntyre consume in the hours before his vehicle came into contact with a Peterbilt tractor driven by Mr. Ballentine?

Hit "Continue Reading" for the answer.

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My friend David Allen has sent word that the black box seminar mentioned in yesterday's post has been postponed. He's right.

I will let you know when it is re-scheduled.

Thanks David. You da' man.

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The ABA is hosting an interesting teleseminar on June 1, 2005. The seminar will address issues concerning automotive event data recorders. These devices are constantly capturing data in modern vehicles; the failure to understand what these devices can do to help or harm your cases could be devastating.

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The United States Senate has heard testimony from the DOT Inspector General about the need for stronger deterrents to deter "egregious" hour-of-service violations in the absence of mandatory on-board data recording devices for over-the-road truckers. Tragically, the inspector said that some truckers view the current fines as just a cost of doing business. Read the article about the testimony here.

The Federal Motor Carrier Safety Administration has withdrawn a proposal to mandate placement of the devices on trucks, but courts have ordered a review of that decision.

There are many trucking companies that act responsibly. However, there are far too many that force drivers to driver over the mandatory limits of hours of service or who permit drivers to do so. After all, many truckers get paid by the mile, which means that if they are not moving they are not getting paid.

We have handled many truck wrecks over the years. It never ceases to amaze me how often we discover that truckers have falsified their log books. I had one driver admit that the company told him to write his log book to always make it appear that he drove an average of 60 miles per hour. His lies were discovered when his log book showed that two trips between the same locations were recorded as 320 miles apart for one trip and 120 miles apart for the next. One of the cities was Knoxville. When asked how the distances between the two cities were could be so different, he replied "It depends on which side of Knoxville you start on." It made for great video.

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You cannot (or at least I cannot) get a real feel for a motor vehicle accident scene without going there.

I need to stand and watch traffic move in the area. I want to look at the scene from the viewpoint of all of the participants. I have to get that feel of the area before I take depositions in the case. Intimate knowledge of the scene allows you readily respond to issues that arise in depositions about the scene itself, giving you the opportunity to get helpful admissions or allowing your adversary (or a witness) to make errors that you can later prove.

So, I encourage you to leave the office and visit the scene of the motor vehicle crash. Try to go at the same time of day as when the incident occurred. If you need to take measurements I would encourage you to go very early in the morning when the sun is just coming up but before the traffic gets heavy. Sunday mornings are the best.

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Thanks to Evan Shaeffer - a man who has time for two blogs and a law practice - for directing me to this helpful article on how to take photographs of vehicles.

You would think it was simple. Not. This article gives some great tips on taking photos that give you the information you need. The main thing I get from this article is that if you have a case where the injuries warrant it (from a financial stanpoint) it makes sense to have a professional take the photographs. It smaller cases these tips may help you improve upon the photos you take yourself.

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