Articles Posted in Motor Vehicle Accidents

social media driving
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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I constantly hear, even from jurors, that we are a “litigious society,”  that everyone sues over everything these days. Assuming this is true, who is to blame?  Critics immediately place the blame at the feet of the injured plaintiffs who must bring the lawsuit for compensation for the injuries they have suffered that were caused by someone’s carelessness. If those darn hurt people who can’t work any longer because of their injuries would just not file a lawsuit we wouldn’t be a litigious society!!  The nerve of these people!  Getting injured through no fault of their own and then expecting compensation for the medical bills, lost wages, pain, inconvenience, inability to work, permanent scarring, loss of their normal quality of life, etc., from the person who caused it all.  The gall! Can you believe these people?

Yes.  Yes, I can. I believe these people because these are the people I represent every single day. These are the people who began their day with their normal routine like every other person but who, unfortunately, came into the path of someone who was careless, someone who wasn’t paying attention to the road, someone who was texting while driving, someone who was reckless and causes an upheaval in the life of someone else due to their negligence and carelessness.

But don’t blame these injured folks. Blame the insurance companies of the careless individuals, because it is the car insurance companies who take the stance “so sue me” and invite litigation that easily could have been avoided had they simply been reasonable in negotiating an insurance claim for personal injury.

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Does your own insurance company owe you a duty? The simple answer is “yes, of course.”  But for any of you who read my blog, you know when dealing with an insurance company nothing is ever simple and you should never assume your own insurance carrier “is on your side.”

I just recently settled a case for my clients for the maximum insurance policy limits of the at-fault driver, even though my clients’ injuries were so severe I am confident a jury would have returned a verdict in their favor well in excess of the insurance limits.  Let me explain the situation.  This case involved a car wreck in which a young driver turned left in front of my clients at an intersection early in the morning. My clients had a green light and were going straight through the intersection. The young driver stated to the police officer he “didn’t see them” before he turned and my clients could not stop their vehicle to avoid the other car that suddenly was directly in front of them as they attempted to travel through the intersection on a green light. Both of my clients suffered severe personal injuries and were hospitalized as a result.

Now a reasonable person at this point would be thinking the driver making the left turn was at fault and his insurance company should pay my clients’ bills, right?  Well, in the words of Coach Lee Corso, “Not so fast!” The insurance carrier for the driver who turned left in front of my clients at first claimed their driver was not liable! The insurance carrier was not going to pay a dime!  That’s when I get involved. After some discussion about the fact that their insured, the young driver, had violated the Rules of the Road by failure to yield the right-of-way to my clients, the insurance company then asserted it’s second position, i.e., my client, who was driving the car, was contributorily negligent by speeding and so it would not be willing to pay anything for his claim, but since his wife, who was a front-seat passenger, cannot be legally contributorily negligent, they would be willing to pay her something for her trouble, but not the policy limits.  The absurd position of the insurance company forced me to file suit. In fact, you can say the insurance company actually invited the litigation, taking the “so sue me” attitude, and I obliged them. I am sure they didn’t consult their own insured about how he wanted the claim handled.  I had to hire an expert accident reconstruction, which is expensive. Neither car had a “black box” that would prove my client was not speeding at the time of the wreck, so my accident reconstructionist performed a signals analysis that proved the defendant could not have possibly had a green left-turn arrow and could not possibly have had the right-of-way at the time he turned left in front of my clients. Then the insurance company’s lawyer took the depositions of my clients.  Their undisputed testimony left no room for doubt that they had the right of way and the defendant was at fault. Following their depositions, I made a settlement demand on the insurance carrier for the insurance limits of their insured. I gave the insurance company 30 days to respond to the demand, and if they did not pay policy limits, the demand would be withdrawn and we would proceed to trial.

statefarm         Do you believe that “Like a good neighbor, State Farm is there?”  I have previously presented plenty of evidence that the answer to that question of whether State Farm is like a good neighbor  is  a resounding “no.”  If you recall, in my case Eells v. State Farm, State Farm did everything it could possibly do within the bounds of the law (but outside the bounds of moral and ethical decency) to prevent its own policyholder from collecting on an uninsured motorist claim after the policyholder had paid premiums to State Farm for over 40 years. I blogged about that case, which went all the way to the Georgia Court of Appeals, where we prevailed, before it was resolved.  The bottom line is that State Farm will do nearly anything to avoid paying legitimate personal injury claims, including forcing its insureds to endure a trial and potential personal exposure, rather than settle a clear liability suit prior to trial.

My son, a great lover of the sport of basketball, likes to say “The ball don’t lie.”  Well, the two cases I am going to tell you about involving State Farm clearly share the theme of “the ball don’t lie,” meaning the truth ultimately comes out. Two recent trials in Georgia have placed the litigious policies of State Farm in the spotlight.  The first trial was tried last month by James Robson and Robert Glass in Cobb County. The jury returned a verdict in favor of the plaintiff for $850,000.00 after just two and a half hours of deliberation.  The at-fault driver, insured by State Farm, had only $100,000.00 in liability coverage. The plaintiff’s attorneys demanded the $100,000.00 to settle the case prior to trial, even though the plaintiff’s medical bills from her injuries were nearly $170,000.00.  This means any verdict for the plaintiff would be very likely to be in excess of $170,000.00.  State Farm had the opportunity (and the contractual duty) to resolve the case prior to trial for the demanded policy limits of $100,000.00.  The plaintiff’s attorneys gave State Farm and extension of time to decide to pay the policy limits and even had the plaintiff’s treating physician speak by telephone to the State Farm adjuster confirming for her the plaintiff required neck surgery from the car wreck.  But did State Farm do the right thing?  No. State offered only $22,500.00 to settle the case, even after admitting their insured was at fault in causing the wreck.  The jury returned what is known as an “excess verdict,”  i.e., over the policy limits, and because State Farm had the clear chance to resolve the case for policy limits, will be on the hook to pay the entire verdict.   You have often heard of “frivolous lawsuits” in the media but you seldom hear of “frivolous defenses.” This case was certainly one of them.

Another was in a case tried last week in Bartow County by my good friends and fellow trial lawyers Morgan Akin and Lester Tate of Akin & Tate in Cartersville.  In that case, the plaintiff  pulled into a roadway after stopping at a stop sign and was struck directly in the rear by a teenage driver. The investigating Georgia State Trooper measured 229 feet of skid marks left by the teenage driver as he tried to stop before rear-ending the plaintiff’s vehicle.  The State Trooper found teen driver at fault. Mom of teen driver then went to State Trooper’s supervisor with photos maintaining the plaintiff just pulled out in front of him. Ultimately, the State Trooper relented and amended the accident report changing fault to that of the Plaintiff. The Plaintiff had shoulder surgery and $90,000.00 in medical bills.  State Farm took up the mom’s torch, denied all liability and hired an expert who simply ignored the skid marks.  The plaintiff’s expert accident reconstructionist, Herman Hill, testified that not only did the teenage driver hit the plaintiff in the rear but was going 75 MPH+ at the time of the collision based on the amount of skid marks left by her car’s tires during braking. State Farm doubled down by asserting a counter claim. The Plaintiff made a settlement demand of  100K policy limits initially and then after extensive litigation made a settlement demand of $275,000.00 prior to trial. State Farm never made an offer.  The jury returned a verdict of $300,000.00.  And because State Farm had the opportunity to resolve this case within the policy limits of $100,000.00 but declined to do so, State Farm will be on the hook for the entire verdict.  Can you imagine being rear-ended by a teenage driver going 75 m.p.h. and then the teenage driver tries to blame you for it?

policecarPolice chases seem to be extremely prevalent in our everyday goings on lately. Last night I watched the famous “slow speed chase” of O.J. Simpson when he fled the Los Angeles Police Department back in 1994  instead of turning himself in as agreed upon following the murders of his wife Nicole and her friend. The mini-series drama currently being shown on the FX Network about “The Juice” reminded me of the night that slow speed chase happened as my husband and I watched in horror and amazement in 1994 as my husband put together the crib for the child we were expecting in August of that year.  Then I woke up this morning to a text alert from the AJC that there had been another police chase here in Atlanta this morning. This morning’s chase, which was near the Douglas-Cobb county line, near Six Flags Over Georgia,  was of two people suspected of having robbed a convenience store of cash and cigarettes.  This police chase ended with the suspects’ car crashing into a utility trailer. The police caught one suspect and the other suspect got away. Apparently, no one was injured in the police chase this morning.  Thank Goodness, I might add.  In San Francisco, California on Sunday, February 7, three people were killed in a police chase after police chased a car that had been seen “doing circles” in the middle of a city street.

We were not so fortunate, however, with regard to two other police chases that occurred a week ago. In Gwinnett County, a totally innocent older couple was killed in a police chase in which the Johns Creek Police Department started a high speed chase of a vehicle for “equipment violation” because it had multiple antennae.  This chase lasted for 4 miles and reportedly reached speeds of 83 m.p.h.  The couple was driving home after celebrating the 78th birthday of one of them.  The suspect’s car crashed into the innocent couple’s car and killed them. No, the police car didn’t hit the couple’s car, but in the world of proximate cause, “but for” the police car and the police chase this lovely couple would be still be alive.  Tragically, and almost unbelievably, the next day a totally innocent grandmother who was taking her precious two grandchildren to church on Sunday morning,  was killed, along with those precious two grandchildren, in a high speed police chase.  This time it was the College Park Police Department chasing a vehicle driven by a suspect suspected to have stolen a vehicle. The chase lasted a purported 10 miles. Five innocent lives lost in the span of two days due to high speed police chases.

Think for just a minute how you would feel if one of your loved ones were killed because of a high speed chase.  How would you feel?  Would you think the high speed police chase had been unnecessary?  Not worth the risk?  Put yourself in the shoes of those grieving family members for a minute.