Zachar Law Blog

Suing the sender? Distracted driving lawsuit blames both texters for crash

If you're texting while driving and you have an accident - it's your fault.  But what about the person who was texting with you? That question is at the heart of a lawsuit in New Jersey.

David and Linda Kubert's lives were shattered in seconds -- about the time it takes to send a text message.  "This is a senseless crash that didn't have to happen," David said.

Accident photos tell the story. On September 21st, 2009, the Kuberts were riding their motorcycle about a mile from their New Jersey home. A Chevy truck swerved across the center line and hit them head-on. "What I saw was a gentlemen in the truck steering with his elbows, with his head down. And I could tell he was text messaging," David said. "I looked down after the impact and my leg was torn off. I asked my wife is she was ok and she told me the bones of her leg were through her pants." Both Kuberts lost a leg in the crash.

Kyle Best, then 18, pleaded guilty to three motor vehicle violations, including using a handheld device while driving.

Texting while walking banned in N.J. town

The Kuberts are now suing him as a distracted driver for civil damages -- and in a novel twist -- are also suing Shannon Colonna, his girlfriend, for sending him text messages while he was driving, and distracting him. Phone records show they exchanged 62 texts that day.

Skippy Weinstein, the Kuberts' lawyer, argues Colonna was "electronically present" in the crash. He says she should have known Best was driving home as they exchanged text messages leading up to the crash. She says she "may have known" he was driving.  "What I find interesting was her testimony at depositions was that she answered by saying, 'This is what teenagers do,'" Weinstein said.  "I believe that if she knew he was driving and answering her back with texts, that she's partially responsible too," Linda said.

Lawsuits in distracted driving cases increasingly involve third parties. "We all know indeed it takes two people to text," said Dallas trial lawyer Todd Clement. With a specialty in distracted driving, Clement argues the text sender could be held liable.

"It seems to make sense that both people involved in the activity could very well be liable including the sender who is not actually behind the wheel," Clement said. "As this case goes forward, I think what you're going to see is a new awareness throughout the country. A new responsibility on the part of both the sender and the receiver of the text message not to continue this kind of negligent activity."

The Kuberts say both text senders and receivers need to be held accountable. "If we get this out to the public, and hopefully we are, maybe somebody won't end up like us. Or worse," David said. Friday, a New Jersey judge will decide whether the Kuberts have a case against the sender of the text message.

Thirty-eight states have banned texting behind the wheel. Government statistics say 24 percent of vehicle crashes can be attributed to phone use while driving.

Legal analyst Rikki Klieman thinks the case shouldn't have a chance at this stage. "We do have sanctions against people who text while driving," Klieman said Wednesday on "CBS This Morning." "We do not yet have any against those who send the text. And judges shouldn't be in the business of lawmaking."

Judge: Text sender is not liable for “electronic presence” in a car accident

The New Jersey judge ultimately dismissed the case against Colonna since she cannot be held accountable for Best’s decision on when he should have read her text, reports CBS News.

Of course, it’s no surprise that the Kuberts’ argument seems rather flawed. If the judge ruled that Colonna is in fact responsible, every text message we ever send would become liable to whatever decisions the recipient makes while reading the text. While it seems fair to note that Colonna can be more careful, in the end, it was Best who committed the crime.

Do you agree with this legal analyst?  In my opinion, these cases should be decided on their own facts.  I also believe that judges are often in the BEST position to decide the standards for a community, and to decide what is and is not good public policy.  A legislative enactment is too broad and cannot possibly cover the nuances of each situation.  A judicial determination can be absolutely tailored to each and every individual case.

Liability against the sender?  I have to know more. 

Did this sender know that her friend was constantly behind the wheel that day?  Was he incessantly responding to her?  If so, I can envision a shared liability.

Otherwise, one of the great things about texts, emails, etc... is that they are “non-intrusive”.  That means that they stay there, and we can respond when convenient, when safe or perhaps just when we feel like it (or not).  The primary responsibility must be on the one behind the wheel, but if the sender is well aware that the “conversation” is occurring when one party is behind the wheel---I am not sure that holding them liable offends me—or is contrary to sound public policy. 

What are your thoughts?

Phoenix crash on Interstate 17 kills 2

Desert Ridge High School senior Olivia Wilson was killed late Monday night in a wrong-way, head-on collision in Phoenix.

Wilson, 17, a popular varsity volleyball player from Mesa, was hit while driving a Toyota southbound on I-17 near Van Buren Street, said Bart Graves, a spokesman for the Arizona Department of Public Safety.

A van driving the wrong way onto the freeway toward oncoming traffic hit Wilson's Toyota head-on at 11:05 p.m., and then a Jeep collided with the car and van, Graves said.

The driver of the van who’s name has not been released, also died. Investigators suspect alcohol may be a factor and the accident is still under investigation, Graves said.

Desert Ridge High Principal Dan Coombs said Wilson was a "very hard working and very nice kid." He called her teachers today to give them the news, and everyone is "shocked and unhappy." Desert Ridge High, in Mesa, is in the Gilbert Public Schools district.

"She was a very well-liked kid who always put out her best," Coombs said. "This is a completely senseless and tragic thing."

Wilson's 16-year-old female passenger, and a passenger in the Jeep, was not seriously injured, Graves said.

The wreck forced the closure of the roadway, and the road was reopened shortly after 5:30am on tuesday.

Investigators “suspect” alcohol?  Are you kidding me???

Why.  Why?  Why?  Why?

How drunk do you have to be to drive THE WRONG WAY onto a freeway? 

This is sad, and very pathetic.  An innocent person is dead, and lives are destroyed.  For what?

So senseless.  I really hope the van driver had lots of insurance coverage.

Small consolation folks, but better than no insurance coverage. 

Is your Lawyer a Trial Lawyer? Ask, then verify

 

After an injury, a personal injury lawyer can be a big part of helping you get your life back together. If you’ve been seriously hurt as the result of someone else’s misconduct, your life has probably become much more complicated overnight. How will you get to work? How will you pay your bills if you can’t work? What about your family? How do you deal with all the insurance forms? The medical bills?  Other losses?  You are in pain, and your body and mind are not capable of dealing with all of the hassles, the stress and the uncertainties that seem to come at you from every direction.  You know you need a good Phoenix personal injury lawyer to help you sort all this out, but how will you choose one?

First and foremost, know this:  Not all lawyers are the same.  If your lawyer advertises primarily for bankruptcy, or divorce, or criminal law, but their ad also mentions “personal injury cases”, you should look elsewhere. 

Second:  All personal injury lawyers are not all equally suited to handle your case.  In fact, not even close.  But how do you tell the difference?   It is crucial that you get help from one with extensive trial experience. You may be saying right now, “but I don’t want to go to trial”. Good question.  Let me give you some insight:  Neither do the insurance companies or their lawyers.  So, how do you choose an attorney who can best help you avoid a trial?  Simple you hire a “trial attorney”.  Let me explain.

There are many law firms that do not litigate cases.  Indeed, many of the big advertising firms do not litigate cases.  Insurance companies know this.  Trial lawyers litigate cases.  Insurance companies know this.  So, when negotiating a case, and knowing now that insurance companies do not like to go to trial, which group of attorneys do you think scare insurance companies the most, the attorneys who they know don’t or won’t file a lawsuit, or the attorneys who have reputations for filing lawsuits?  Yep—you guessed it.  Insurance companies will pay MUCH more attention to the attorneys who are more ready to challenge them in court—the TRIAL ATTORNEYS. 

Trial lawyers, as the name implies, direct their efforts to digging deep and preparing a case as though it will be necessary to take it to court (indeed, this is the best way to keep it out of court--let the other side know you are serious), while non-trial lawyers spend most of their time trying to arrange things to settle as quickly as possible. Again, if the insurance companies aren’t convinced you are serious, they often won’t offer you anything close to a fair settlement for your case.  Which type of lawyer is best for you?

The best personal injury lawyers are “trial lawyers”.  And even moreso, the best trial lawyers are those that have been recognized by the Arizona State Bar as being a Certified Specialist in Personal Injury and Wrongful Death.  An attorney cannot earn this honor with being a “trial lawyer”, and, less than 2% of all attorneys in Arizona are Certified Specialists.   In these days of insurance company advertising and propaganda, it is even more important than ever to make sure that the attorney you hire is a true trial lawyer.  You are assured of this when you hire a Certified Specialist.

So how can you be sure that yours is a trial lawyer? 

The answer is easy:  Ask, then verify:

1. How long have you been an attorney?
2. How many cases have YOU tried?
3. In which courts?
4. What results did YOU get?
5. How many of those cases were cases similar to mine?
6. Are you a Certified Specialist?

Phoenix Personal Injury Lawyer Christopher Zachar at Zachar Law Firm, P.C. has years of experience in dealing with personal injuries and specializes in getting victims fair compensation for their pain and suffering. Chris is a trial lawyer, and a Certified Specialist in Injury and Wrongful Death. 

If you’ve been injured as a result of someone else’s misconduct, your road to recovery, and getting the other side’s insurance company to do what is right may be a difficult one. The best way to stand up and fight for your rights is to get someone in your corner who has the experience to fight for you, to help you win your case.

Arizona police seek out drunken drivers over Memorial Day weekend

Don't drive drunk and cause an auto accident please!

Police agencies across Arizona are launching patrols to seek out drunken drivers during the Memorial Day weekend.  The Governor's Office of Highway Safety director Alberto Gutier says 65 police agencies in the state will take part in special patrols.

The patrols will run from Wednesday night through Monday. The Phoenix Police Department kicked off the patrols on Wednesday night.  The areas that police will focus on include the eastern suburbs in metro Phoenix, the area around the University of Phoenix Stadium and the highway leading to Lake Pleasant.

Last year, NINE PEOPLE died in car crashes in Arizona during the Memorial Day weekend.

One of the fatalities was alcohol-related.  That is one too many, folks.  

Why does this continue to happen?  Haven’t people learned by now that when you drink, you shouldn’t drive?

If you cause an accident, even if there are no injuries, you are going to mess up your own life big time.  If you cause an accident where some is seriously injured or killed, you are going to mess up and/or ruin the lives of many people.  

There are so many cheap and/or free transportation and taxi services right now—it just makes no sense to me.  

PLEASE be careful.  If you have been drinking, do not get behind the wheel of a car.  

Everyone have a happy, and SAFE, Memorial Day weekend.

Deadly tire blowout in packed RV serves as cautionary tale

A deadly auto accident in phoenix involving several people in an RV along Loop 202 on Monday is serving as a cautionary tale about tire troubles during the sweltering Arizona summers.  Seven people were inside the RV Monday when a tire blew out, causing the RV to slam into the wall along the 202. The driver was killed and three children were injured.

The Department of Public Safety is investigating whether the tire was faulty or improperly maintained.  Officers are hoping that the crash serves as a warning to drivers about the importance of preventative tire maintenance. 

“Here in Arizona, it seems to be more because of the heat," Officer Tim Case said. "You'll see a lot more of the tread wear on the tire. It's imperative, especially in Arizona, that your tires are in good shape."

Matt Allen, owner of Virginia Auto Service, said that there are several key points when it comes to preventative tire maintenance. Make sure the tires are less than six years old, are not weather-worn or dry rotted, and have the correct air pressure and tread depth.  "It's huge, it's very important," Allen said. "It's one of the easiest things the owner of a car can do without having to go to a shop."

OK. Good advice. But there is SO MUCH MORE that one needs to be aware of regarding tires.

How long have the tires been on the vehicle?  How many miles are on the tires?  More importantly, how OLD are the tires?  You may have purchased the tires 6 months ago, but they have may been manufactured and sitting in a warehouse for 7 years----you need to know that!

Was the vehicle recently serviced?  Have you performed regular tire maintenance (air checks, rotations, etc..)?   Is there any history of defects of the brand/type/size tire?  Any history of recalls, accidents, litigation, etc…?  Alternatively, did the tire at issue have some defect that occurred in the manufacturing process? 

 There are many things to consider with respect to tire safety and possible legal claims for tire defects.  It is imperative that a thorough investigation be done immediately, and the one doing the investigation be experienced.  The law enforcement officers often do a good job, but not always thorough enough.  Have they taken the time to gather every single scrap of rubber off the highway?  Each one helps tell the story of what happened, and one missing piece can make the puzzle incomplete and a case impossible to prove. 

 Our hearts and prayers go out to the victims and their loved ones in this horrible accident. 

School bus, van collide in East Valley

Fire officials said two people were injured in an auto accident in Arizona involving a school bus and another vehicle in the East Valley Wednesday morning.  A white van appeared to have hit the back of the school bus in the area of Broadway and Signal Butte roads.

Forrest Smith with the Mesa Fire Department said Mesa/Apache Junction crews treated two people.  Smith said initial information from the scene indicated a 17-year-old female suffered non-life threatening injuries and a man in his 50s suffered life threatening injuries.  Two people on stretchers were seen being placed into medical helicopters.

The roadway was partially blocked, but there did not appear to be any major traffic backups in the area.

Inattention, inattention, inattention. 

Early morning drive and afternoon rush hour.  A lot of care on the road.  We have to remain attentive.  It only takes a second—if you take your eyes off the road, to lose your opportunity to avoid an auto accident.

We have seen a few accidents lately involving school buses.  This one, it appears, was not the bus driver’s fault, but then, we don’t have all the information in yet. 

 Fingers crossed that all will be okay in the near future. 

DOG BITES – A Growing Problem

Put a muzzle on your mutt, or your insurance premium might go up.

Dog bites accounted for more than one-third of homeowners insurance liability claims paid in 2011, costing nearly $479 million in the U.S., according to the Insurance Information Institute.  Property casualty insurers pay out far more in claims for property damage to homes. But when it comes to liability, the cost of dog bite claims has risen 48% since 2003, even though the number of dog bites has remained roughly flat, the organization said.

State Farm, the largest writer of homeowners insurance in the U.S., paid more than $109 million on nearly 3,800 dog bite claims in 2011.  The Insurance Information Institute's analysis of homeowners insurance data found that the average cost of dog bite claims in the U.S. was $29,396 in 2011, up 53.4% from $19,162 in 2004. Medical costs and the sizes of settlements, judgments and jury awards given to plaintiffs have all outpaced inflation, the organization said.

High payouts on dog bites are happening because more people own dogs, they live closer to one another, and parents are more likely to get advanced medical care for their children after a bite, said Bob Skow, CEO of the Independent Insurance Agents of Iowa. "Forty years ago, a kid got bit, Mom and Dad didn't take him to a plastic surgeon," he said. "Nowadays they do."

Most often, kids are the bite victims. Skow said people should own dogs appropriate for where they live and train them properly, and parents should teach children how to avoid provoking dogs.  There are 78.2 million dogs in the U.S., according to the American Pet Products Association, one dog for every four people. "Statistically, the numbers have gone up at the same time that we've become more of an urban society," Skow said.

Laws in 18 states let dog owners off on liability for the dog's first bite, but in others, including Arizona, an owner is liable for all damages caused by his dog, unless the person injured was intentionally provoking the dog or trespassing.

In Arizona, there is no “one free bite” rule.  Rather, it is a rule of “strict liability”.  Your dog bites another, and you are at fault and liable for the injuries and damages that result.  However, to make a “strict liability” claim, the time frame is shortened.  The statute of limitations in Arizona is one (1) year, and not the usual two (2) year time frame. 

Homeowners insurance generally will pay these claims, but some carrier are now excluding “animal liability” claims from their policies.  This leaves the dog owners exposed to personal liability.

Do you own a dog?  Do you know whether your policy excludes insurance protection if your dog injures another?  Might be a good idea to find out, before it happens. 

Car vs. Commercial Truck: The dangers you never saw coming

According to the fatality analysis reporting system and motor carrier management information system, in 2008, there were 4,006 large trucks involved in fatal crashes and 129,653 large trucks involved in non-fatal crashes.

If you are involved in an accident with a commercial truck and file a personal injury claim, you may be disheartened by the amount of paperwork and frustration need to file a claim for injures and losses.

There are several reasons that the claims process is so much more complicated when a car and commercial truck are involved in an accident.

- When a 3,000 pound car and a 70,000 pound truck collide, the accident is generally severe and damages and injuries can be staggering. In fact, a Cook County, Ill., jury recently returned a $10 million verdict in favor of a 72 year old woman rendered wheelchair dependant as a result of a car vs. truck accident.

- Multiple parties will likely be named. They could include the trucking company, its insurance company, the vehicle insurance company, the vehicle manufacturer, and the trucks drivers’ personal insurance company. If road conditions were a factor, local governments could also be named.

- When commercial trucks across state lines in the course of business, federal laws com into play with regard to liability and proof of responsibility.

If you or a loved one has been injured as a result of a commercial vehicle accident, please seek the advice and guidance of an experienced trucking accident lawyer. They can help you recover just compensation from responsible parties to cover your losses and injuries. Stay safe!

What if people couldn't be held responsible for Harm?

If you haven’t heard the story about Dr. Yasser Awaad of Dearborn, Michigan, let me summarize it for you:

This neurologist took advantage of as many as 255 of his patients – maybe more – by diagnosing them with diseases they didn’t have and prescribing medication they didn’t need. Why?  Apparently to cash in on large insurance payouts for the needless treatment. Not only was the treatment unnecessary, it was often harmful, as the side effects of the powerful medications ruined the lives of some of his patients.

Dr. Awaad denies any wrongdoing, saying he was just “exercising his professional judgment”. And if a package of bills currently being considered by the Michigan Senate Insurance Committee is ultimately passed, Dr. Awaad and those like him will never be held accountable for their actions.

Michigan Senate Bills 1110, 1115, 1116, 1117, and 1118 would essentially grant immunity doctors.  Injured victims and their families would have no legal recourse in the vast majority of cases. In the few that could potentially be pursued, the amount of compensation that could be recovered would be so drastically limited that no one could financially justify bringing a claim or filing a case in court.  In short, the voices of victims would be silenced. People would be completely denied their day in court for personal injury at the hands of others.

Then, the taxpayers (YOU), rather than wrongdoers, will be paying for the ongoing treatment of these injured people through Medicaid and Medicare.

Would you feel safe going to a hospital where an emergency room doctor can be negligent but not responsible for his or her actions?  Would you be comfortable having a baby delivered by your OB doctor who can’t be held accountable for his or her mistakes?

Indeed, would you be comfortable doing ANYTHING, ANYWHERE, if the people in charge could not be held accountable if they harmed you or your family?

This is what is meant by “Tort Reform”.  “Reform” literally means taking away or in some way limiting your rights to seek redress or recovery for the harms caused by another.  It sometimes may sound like a good idea---until it happens to you.  It is never as important, until it happens to you. 

Remember:

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for me
and there was no one left to speak out for me.

The laws of the United States, and each of the states, hold people accountable for their wrongdoing. 

Just stop and think for a minute:  If people could not be held accountable and liable for their wrongdoing in causing personal injury to you, what type of country/world would we live in?  It would be complete anarchy.  It is a world that I cannot envision, and never want to. 

If the proposed bills pass in Michigan, would you ever want to go there?  What if something happens to you or a family member while there, and you need medical care?  Is that a chance you want to take?

This is a very bad idea. The potential results are catastrophic for residents of Michigan. 

Please feel free to comment. 

Car Accident Lawyer: Ignoring Vehicle Recalls is Dangerous

Ignoring a vehicle safety recall threatens public safety, and according to a new study from Carfax, it's a big problem. The group's study found that more than 2.7 million used cars were for sale online last year with open safety recalls.

The worst states were California, Florida and Texas; each listed more than 100,000 cars for sale with open recalls last year.

"Many of these cars change hands without the buyer ever knowing a recall exists, increasing the safety risks both to passengers in the car and others on the road. We all need to do our part to make sure these cars are identified and fixed — buyers, sellers and owners alike," said Larry Gamache, communications director at Carfax.

Since getting a recalled car fixed is free, cost shouldn't prohibit consumers from taking their car to the dealership for the repair. Is your car or truck one of the millions of vehicles with an unfixed safety recall? To look up a recall, visit the National Highway Traffic Safety Administration's website or call NHTSA's vehicle safety hotline at 888-327-4236.

Paying attention to recalls and staying up to date with your vehicle is one of the biggest factors in safety on the roads today. Countless auto accidents in the past have prompted auto makers enlist recalls.

Making sure the vehicle you are in is a top priority. Remember to always maintain your vehicle to keep it in safe working order. If you see any recall for your vehicle at all, don't ignore it. Get it fixed, it could be the difference in a catastrophic injury or even worse.