Articles Posted in Motor Vehicle Cases

Many people are unaware that local governments often have ordinances that can form the basis of a negligence per se case – ordinances that may create a responsibility greater than that imposed by state statues or the common law.

Consider this ordinance from Nashville and Davidson County, Tennessee:

• It is unlawful for any person to drive any vehicle upon the streets of the metropolitan government or upon any private road or driveway or parking area in a wilful and wanton disregard for the safety of persons or property. Any person who drives any vehicle at a speed of fifteen or more miles per hour than the posted speed limit upon any streets of metropolitan government or upon any private road or driveway or parking area in any residence district shall be presumed to be driving in a wilful and wanton disregard for the safety of persons or property and the burden of proof shall be upon the driver to establish that they were not driving with such disregard.

Code, 12.68.180 Reckless driving(emphasis added).

Successfully bringing suit in Tennessee for an injury or death allegedly caused by the acts or omissions of a governmental employee is more difficult than a claim against a private citizen or business. Consider, for example, the case of Lynch v. Loudon Cnty., No. E2013-00454-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2013).

On a cold, wet, icy winter morning, a deputy sheriff arrives at the scene of a minor, single car accident. The car’s front tires had slid off the roadway preventing the driver from backing the car up. The driver is a woman, alone, wearing a bathrobe and naked underneath. She is not injured, nor is her car damaged.

Before reaching the woman’s vehicle, the deputy encounters the passerby who first stopped to assist the woman and called 911. The passerby tells the deputy that “something is not right” with woman and that she cannot provide a phone number or answer any questions about where she was coming from or going. The passerby will later testify that the woman appeared “sleepy,” “zoned out,” and “not real steady.”

The sender of a text message to a person faces potential liability if the recipient of the message negligently causes a wreck injuring others, according to a recent opinion of the Appellate Division of the Superior Court of New Jersey.

In Kubert v. Best, A-1128-12T4 (N.J. Sup. Ct. App. Div. Aug. 27, 2013), the Kurberts were seriously injured when a young drivers who was texting while driving crossed the center-line of the road and hit them.  Their case against the young driver was settled, but the Kuberts appealed a decision of the trial court that dismissed their claims against the young driver’s friend who was texting the driver much of the day and sent a text message to him immediately before the accident.  Texting while driving is illegal in New Jersey.

No other appellate court has addressed this issue:  whether one who is texting from a location remote from the driver of an automobile can be liable to persons injured because the driver was distracted by the text.  The court answered the question "yes," but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."  The court issued a 30-page opinion on the issue, which employs duty analysis to arrive at the conclusion that a duty should be imposed on the sender.  To reach its result, the majority of the court discusses the duty of a passenger in a vehicle at great length.

State Farm, a leading auto insurer, has sued a referral service, chiropractic  firm and others alleging, inter alia, that they engaged in a fraudulent scheme of referrals to and from a plaintiff’s firm that resulted in monetary loss to State Farm via it medical payments and personal injury protection (PIP) coverage.   

Here is a summary of the action as set forth in the federal court complaint:

 This action involves a massive fraud scheme by the Defendants to obtain from State Farm Personal Injury Protection (“PIP Benefits”) and Medical Payments Coverage (“MPC Benefits”) insurance benefits (collectively, PIP Benefits and MPC Benefits are referred to as “No-Fault Benefits”) for services and treatments purportedly rendered to patients at Physicians Group clinics in Florida, which are owned by Kompothecras [a chiropractor]. The services and treatments were not lawful when they were rendered because the Defendants intentionally violated several important criminal, civil and administrative laws to lure unwitting motor vehicle accident victims to receive the services and treatments at the Physicians Group clinics, namely the Patient Brokering Act (Fla. Stat. § 817.505), the Patient Self-Referral Act of 1992 (Fla. Stat. § 456.053), the Anti-Kickback Statute (Fla. Stat. § 456.054), the Deceptive and Unfair Trade Practices Act (Fla. Stat. § 501.201 et seq.) (“FDUTPA”), the laws establishing grounds for disciplinary action against chiropractors who engage in false and misleading advertising (Fla. Stat. § 460.413(d), (f) and (l)), and administrative rules prohibiting chiropractors from engaging in deceptive and misleading advertising (F.A.C. Rule 64B2-15.001(2)(a), (b) and (k)). The driving force behind the Defendants’ scheme is to exhaust their unsuspecting patients’ limited No-Fault Benefits, without regard to whether the patients may have health insurance that might otherwise cover some or all of Physicians Group’s charges, thereby preserving their No-Fault Benefits for other medical services that the patients may truly need.

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. 

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).

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.