Motor Vehicle Cases

October 19, 2011

New York Court of Appeals Rules That Bus Seat Belt Claims Were Not Preempted

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).

In Doomes v. Best Transit Corp., No. 170 (N.Y.Ct. App. Oct. 18, 2011), several bus passengers were injured after a dozing bus driver caused a single-vehicle bus crash. The Doomes plaintiffs and several other passengers sued several defendants and reached settlements with some of them. The claim against the bus manufacturer Warrick was not settled.

The jury found the bus manufacturer partially liable for the injuries suffered by the plaintiffs due to lack of seat belts. On appeal, Warrick asserted several points, including an argument that the jury was improperly allowed to consider that the bus was defective or that it was negligent due to a lack of seatbelts because FMVSS 208 (49 CFR 571.208), which did not require the installation of passenger seatbelts, preempted any claims of liability for failure to install such seatbelts.

October 7, 2011

Tennessee’s New Dog Bite Law Protects Motorcyclists, Too.

by The Law Offices of John Day, P.C.

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.

March 8, 2011

Truck Driver Has A Duty Not To Park Along Roadside

by The Law Offices of John Day, P.C.

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.

February 17, 2011

Ohio Speaks Out on Settlement Proposals Requiring Plaintiff’s Lawyers to Indemnify Opposing Parties

by The Law Offices of John Day, P.C.

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.

December 29, 2010

Uninsured Motorist Article Published in the TBA Journal

by The Law Offices of John Day, P.C.

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.

December 1, 2010

Drugs and Drivers

by The Law Offices of John Day, P.C.

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.

November 2, 2010

Duty of Rental Car Companies to Check Driving Record of Renters

by The Law Offices of John Day, P.C.

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.

October 28, 2010

Do Auto Safety Standards Save Lives?

by The Law Offices of John Day, P.C.

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).

October 26, 2010

Vehicle Crashes, Death and Injuries Continue to Decline

by The Law Offices of John Day, P.C.

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.

October 19, 2010

Cost of Auto Accidents

by The Law Offices of John Day, P.C.

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.