Articles Posted in Motor Vehicle Accidents

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Taking a stroll down the streets of Atlanta can be a healthy pastime or a means of getting in your social interactions for the week, but the cheapest form of transportation is quickly becoming one of the more dangerous. One unfortunate story in Smyrna, GA last week tells of a pedestrian fatality at the hands of a distracted driver; the driver made a phone call, drove off of the roadway, and struck the pedestrian. Another upsetting story in the AJC last week reported of a woman killed in Atlanta as she attempted to cross I-75 and was struck by multiple cars. Recent reports suggest that she attempted to run across the highway due to a dispute over drugs that resulted in someone chasing her. Unfortunately, this story is just one of many that could be written in Georgia this year, as pedestrian fatalities are on the rise on the national level. From 2007 to 2016, the number of pedestrian fatalities increased by 27%, and whether the victim is a harmless pedestrian walking to work or drugs are at play, researchers are not quite certain what is the main cause for the increasing numbers of pedestrian fatalities in the recent years.

Reports over the last few years have found a few potential factors to the increasing fatalities. Obviously, cell phone usage is an issue. Whether a distracted driver is using a phone while operating a vehicle or a distracted pedestrian has his or her face buried in the phone while walking through a crosswalk, cell phones are making us more distracted, less aware of our surroundings, and slower to react when we encounter danger. Cell phone use increased by 236% in the years 2010 to 2016, providing greater opportunity for cell phone related pedestrian accidents.

Many studies and reports suggest the increase in cell phone usage could be a leading cause of pedestrian involved accidents, but a new study provides an interesting possible factor in the rising number of pedestrian fatalities: marijuana. The report does not intend to imply direct correlation of any sort but merely suggests that the possible impairment of judgment and reaction time — for both drivers and pedestrians — due to recreational use of marijuana could lead to higher pedestrian incidents on the roadway. The study found that in DC and the 7 states that legalized recreational use of marijuana between 2012 and 2016, there was a collective 16.4% INCREASE in pedestrian fatalities between the first 6 months of 2016 and the first 6 months of 2017. Conversely, in the remaining states, there was a collective 5.8% DECREASE in pedestrian fatalities between those two time spans.

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In a series of blogs I wrote last summer on distracted driving, I laid out some of the problems with the advancing technology we have readily available to us at our fingertips. The use of social media apps like Snapchat and Instagram while driving has led to many fatal or injurious car wrecks, and texting while driving, which is known as a “combination distraction” – one that averts our attention manually, visually, and cognitively – has caused thousands of deaths and injuries in accidents in the last few years. Last summer, one of my distracted driving blogs was about a bill that the Governor of Washington was signing into law banning hand-held usage of cellular devices. I wrote that Georgia had yet to sign such a bill into its own laws, but one year later, this subject matter needs an update.

This legislative session, the Georgia Legislature worked to pass House Bill 673, which Georgia Governor Nathan Deal signed into law a few months ago and will become effective July 1, 2018. The bill is known as the “Hands-Free” or “Distracted Driving” law, which by name alone may sound self-explanatory but with further inspection can be a little confusing. Allow me to lay out the need-to-knows of Georgia’s newest cell-phone driving law.

This bill, which has now become an Act, amends Title 40 “Motor Vehicles and Traffic” of the Official Code of Georgia Annotated. The main change in the Code will be located in O.C.G.A. §40-6-241, which explains a driver’s responsibility to exercise due care, specifically regarding usage of a wireless telecommunications device. The first parts of the bill change the penalties within the license point system. First violation of Code Section 40-6-241 will result in 1 point added to the license; second violation results in 2 points added; and third results in 3 points. There are other – and potentially worse – penalties a driver could face if convicted of violating the Code section.

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The short answer is maybe.

One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car.  Most people need the pay-off money to be able to buy substitute transportation as quickly as possible.  Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?

Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no.  In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place.  They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck.  At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.

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Stop, Look, Listen!  We often hear that in regard to what you should do when you approach a train track in your vehicle. Stop, look and listen for a train before driving over the tracks. I can remember when I was little and rode the school bus home, the bus driver even opened the door to the bus at train tracks so he could see better and hear any potential approaching train more clearly. But shouldn’t the same rules apply for pedestrians before they cross a busy city street?  Should pedestrians also stop, look and listen for their own safety? Are they even required to do so?

I drive down Edgewood Avenue in Downtown Atlanta to get from my house to my office every day. Edgewood is a busy city street that goes through the heart of Georgia State University.  At any given time of the day, there are hundreds of college students crossing Edgewood Avenue to get to their next class to to their dorm room or maybe even to the library.l  The three photos above demonstrate a typical day with GSU students crossing Edgewood Avenue.  These photos show students crossing at the light, but students often cross Edgewood in the middle of the block, not at an intersection and without any traffic signal. Invariably, these young men and women are texting while walking, talking on their cell phones in deep conversations while walking, or even listening to something on their phones with earphones on while they cross one of the busiest streets in Downtown Atlanta.  Many pedestrians attempt to cross while vehicle traffic has a green light.  One of the photos above shows pedestrians crossing the street diagonally, which is certainly against the rules. Watching this sort of nonchalance and devil-may-care attitude regarding oncoming cars while they strut right out into the street had me wondering:  who would be at fault if a pedestrian crossing illegally where struck by a car that had a green light?  Does  a person who texts while they cross a street value his or her life? Or does the lack of taking any safety precautions for their own person, e.g., not texting while walking, forfeit the right to blame someone else when they are struck by a vehicle?

There is no question that texting while walking, especially while crossing a street, is a bad idea.   Research has found that, mile for mile, distracted walking results in more injuries than distracted driving, and makes pedestrians 60 percent more likely to veer off course. At least one city has taken the step to protect people from themselves.   Starting Wednesday, texting while walking across a street in Honolulu is illegal, thanks to a new law that allows police to fine pedestrians up to $35 for checking their phone, while crossing an intersection in the Hawaiian city and surrounding county.  Honolulu is, apparently, the first city in the U.S. and perhaps the world to ban texting while walking (TWW).  “This is really milestone legislation that sets the bar high for safety,” said Brandon Elefante, a City Council member who proposed the bill, in an interview with the New York Times.

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In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.

The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts.  (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).

In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.

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Parental concern, law enforcement warnings, and user disapproval of the recent updates to the Snapchat app are the least of the company’s worries. Though Snapchat, Inc. has made the headlines recently due to the updates, this isn’t the first time the company has been under scrutiny from the public. In April of 2016, a complaint for damages was filed in a Georgia state court against the company for injuries sustained from a motor vehicle accident, claiming that the main cause of the accident was the speed filter of the Snapchat app.

The speed filter allows a driver behind the wheel to document his or her speed by “snapping” a picture while the car is in motion. On this one particular night, a teenage driver allegedly opened her Snapchat app while driving as an attempt to snap a picture of her car reaching 100 mph. The driver allegedly, according to the Complaint, accelerated until reaching approximately 107 mph before she realized another driver had pulled onto the road. She crashed into him at full speed. Both cars were totaled, leaving multiple people with tremendous injuries – both physical and psychological – and thousands of dollars in expenses.

The plaintiffs have sued Snapchat for negligence, in part because this is, according to the Complaint, not the first instance in which a Snapchat user has used the speed filter of the app and caused a car crash. Petitions online even called for the app to remove the filter or for the app to restrict the usage of the filter while driving. Despite knowing that the speed filter presented many dangers to the public, as of the date of the incident above, Snapchat had not removed the speed filter, thus creating the perfect opportunity for another distracted driver to cause serious harm.

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In Washington last month, Governor Jay Inslee took a step towards improving the safety of his streets by signing a law prohibiting the holding of any electronic device (cell phones, tablets, etc) while driving or waiting at a stop light. The law will go in effect in July due to the Governor’s veto of a section that would have postponed the law’s implementation until 2019. The matter is just too important to wait.

As technology’s prevalence in our everyday lives increases, its capability of distraction from our other daily activities increases as well. This includes our activity within our car. The human’s false sense of ability to multitask often leads to problems behind the wheel. The driver only looks away for one second or only needs to pick up that napkin or only needs to change the radio station or only needs to send that last text. But those single and quick moments that the driver’s attention is diverted are the single and quick moments that can take the driver’s or someone else’s life.

The problem doesn’t only occur with drivers looking away. A driver can be very much so distracted while his or her eyes are fixed on the road. There are many different types of distractions: internal (items inside the car), external (objects outside the car), visual (eyes taken off the road), manual (hands taken off the wheel), and cognitive (distracting thoughts). It just so happens that the use of the cell phone is a combination distraction; it combines the dangerous aspects of the various types of distractions into one grand distraction. In the entire time that you go through the process of picking the phone up, looking down at it to find the contact you want to call, thinking about if the other person can answer your call, and physically dialing the call, your focus has been taken off driving long enough to have an accident.

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My office is in downtown Atlanta and I drive each day through Georgia State University, which now has an enrollment of 32,802.  You can imagine how many of those 32,802 are walking on the sidewalks and crossing busy downtown streets at any given moment on a weekday. And just add these students to the normal, everyday Downtown Atlanta population of employees, deliverymen, and homeless people, bicyclists who weave in and out of traffic and the schizophrenic Streetcar, which can wait at a station for interminable minutes or pull away without notice at any given second. Suffice it to say there are a lot of pedestrians on our streets downtown. Nearly every day at least one of them attempts to dart out in front of my car, regardless of whether they are even close to a crosswalk.  Apparently, crosswalks are for looks only in downtown Atlanta. A driver must be extremely vigilant while driving downtown not to have a mishap with a pedestrian. Add to the inherent danger of crossing a street the aggravating factor that many pedestrians are on their phones while walking out in the middle of the road. I have seen pedestrians talking on their phones, listening to their phones with earphones, texting on their phones, texting on their phones while talking on their phones on speakerphone and every other possible configuration of phone use while walking.  Surely, if they are hit this would amount to a heck of a lot contributory negligence?  The number of incidents of pedestrians being hit by cars is on the rise. For example, in 2013, 180 pedestrians were killed statewide, making it the deadliest year for pedestrians since 1997.  The CDC reported that in 2015  5,376 pedestrians were killed in traffic crashes in the United States. This averages to one crash-related pedestrian death every 1.6 hours.  Additionally, almost 129,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2015. Pedestrians are 1.5 times more likely than passenger vehicle occupants to be killed in a car crash on each trip.    Atlanta is reportedly the 8th most dangerous city for pedestrians.

So who has the right of way?

The Governor’s Office on Highway Safety does a pretty fair job at trying to educate pedestrians regarding right of way and their duties to watch out for their own safety, in addition to vehicle driver’s duties to watch for pedestrians.

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It’s only a matter of time before you or a loved one is injured by one of these nuisances that are so prevalent on Atlanta city and county streets these days.  Or it’s just a matter of time before you damage your car from driving over one of them.  The ubiquitous metal plate. Who thought these were a good idea in the first place?  The metal plates in the photographs above are currently on my street, Oakdale Road in unincorporated DeKalb County. These two metal plates have been there for months.  And notice there is really nothing hold them in place other than the mere weight of the things and gravity.  But a truck that ways 60,000 pounds loaded, or an SUV that weighs 10,000 pounds or even a small car that weighs 6,000 pounds going 35 m.p.h. can easily move these plates when they are not pinned down.  Once moved, they become a potentially fatal hazard to the motoring public. Imagine coming upon this monster (see photograph below) as you mind your own business driving down the road. Once your car ran over it, you and your car wouldn’t stand a chance.  The weight of your car would cause the metal plate to flip and your car would fall into the sinkhole below. It is doubtful you could escape without serious bodily injury.  The photographs below show several metal plates that are clearly not pinned down or held down in any way whatsoever.  Car and truck traffic have obviously shifted them, so that the next unknowing driver, potentially YOU, could be swallowed by the hole they are supposed to be covering.  I am confident this is not an isolated situation;  my guess is that you have seen the frightening scenario below multiple times.

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There are actually requirements for the way these metal road plates are required to be placed on the roadway.  For example, steel plates must be fixed in place to avoid movement.  In addition to being firmly in contact with the pavement, they should be either pinned, recessed into the pavement, or secured with asphalt wedges around the perimeter. Pinning into the pavement involves driving pins into the pavements along the edges of the steel plates to prevent movement. Recessing involves cutting out the area where the steel plate will be placed.  If these are the mandatory requirements for use of these monsters, why are they so seldom pinned down or recessed?  As a member of the motoring public, you are entitled to assume these plates have been put down and affixed to the street properly so that they are safe for you to drive over. The law does not require you to drive around them in an effort to avoid them.

Remember the “Pothole Posse” formed by then City of Atlanta Mayor Shirley Franklin?  It seemed to make progress for awhile, but after the initial excitement about bringing back safe streets, we are right back where we were with our streets littered and cluttered with these metal plates. Recently, in New York, such metal road plates may have played a role in a fatal crash that killed six people.

iphone   This week in Georgia a Georgia State trial court ruled in favor of the social media application Snapchat in a personal injury case and granted Snapchat judgment as a matter of law based on immunity.  The case is Maynard v. Snapchat and is pending in the Spalding County State Court. The plaintiff, who suffered severe brain damage in a wreck when he was hit by a teen who was using Snapchat at the time of the wreck is ably represented by several of my friends, including Mike Terry and Michael Neff, both wonderful lawyers. The suit asserted that Snapchat’s speed filter—a feature which allows a user to photograph how fast a user is going—”motivated” McGee to “drive at an excessive speed to obtain recognition and to share her experiences through Snapchat.”  Apparently, young drivers who use Snapchat are now often driving recklessly fast so they can snap a photo of the speed of the car they are driving to share it with all of their Snapchat followers, and then I guess the reckless driver gets to brag to all of her friends, “Hey! Look at me!!  Me! Me! Me!  Look how fast I am driving!!  Whoopeeee!”  But the Snapchat app encourages the driver to break the law, drive way too fast, illegally fast, and then requires an action by the speeding driver to capture the not-to-be-missed moment.  Those few seconds of distraction force the young driver to take her eyes off the road and they often lose control of their car or fail to stay in their lane, resulting in a horrible car wreck and causing untold devastation to an innocent person minding his own business driving on the road that night.  In the Spalding County case the evidence showed the teen driver reached speeds of 113 m.p.h. AWFUL!

The defense attorneys argued successfully that Snapchat was entitled to complete immunity under the Communications Decency Act, passed in 1996, and whose Section 230 states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This provision seems to grant immunity for written communications published on the social media application, not for creating an app that encourages someone to break the law in the first place.  Simply reading the literal words of the immunity provision, they would seem to be inapplicable to the facts of this case.  But I’m not a judge and the only opinion that counts is the trial judge’s and he disagreed with me.  Plaintiff’s counsel, I would assume, are considering an appeal.

This case shows a horrifying trend with the Snapchat “speed filter.”  In November of last year in Tampa, Florida, a teen driver who reached speeds of 115 m.p.h. lost control of her car, crossed a median and hit a minivan carrying a family. The wreck killed five people. Snapchat says it actively discourages “their community” to use the speed filter while driving.  If that is true, what is the point of it?  Can Snapchat claim, with a straight face, argue that the speed filter is not designed to be used while driving when it’s entire purpose is to measure a vehicle’s speed?  There is also currently pending in Texas another lawsuit against Apple with essentially the same facts and allegations as the Maynard case here in Georgia but involving Apple’s application Facetime. In that case, a   “driver rear-ended the Modisettes with his Toyota 4Runner at 65 miles per hour — killing five-year-old Moriah Modisette. The driver, Garret Wilhem, told police he was on FaceTime at the time of the crash, and officers found his phone in the car with FaceTime still engaged.”

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