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In an interesting article by Matt Richtel in the March 2, 2010 Business Section of the New York Times, electronic billboards are examined as another possible cause of distracted driving. We are all aware of distracted driving due to speaking on a cell phone and texting while driving, and who hasn’t seen someone driving while eating, drinking, applying makeup or looking at a map? However, what about driving while digital images are flashing at you every six to eight seconds, with headlines, food deals or what song is playing on the radio? In my opinion, the increased prevalence of these electronic billboards will undoubtedly lead to more car crashes and more fatalities on the roadways.

In Michigan, safety groups are attempting to block construction of the billboards, and the executive director of Scenic Michigan called the digital billboards “weapons of mass distraction.” Michigan legislators are considering a two year moratorium on the construction of electronic billboards. According to the article, the Federal Highway Administration is performing a study in which eye-trackers are utilized to determine whether motorists look at these billboards, and if so, for how long. Studies have been performed which indicated that electronic billboards do not change driver behavior, but their accuracy is questionable as they have been sponsored by the billboard industry.

The Federal Highway Administration has prohibited states from having “flashing, intermittent or moving light or lights” for some time, but possibly due to some intense lobbying by the billboard industry, the agency ruled in 2007 that free standing digital billboards did not violate their rules. Instead, the the agency simply recommended that advertisements on the billboards remain in place for at least 4 seconds and not be “unreasonably bright”, which is certainly a vague standard, to say the least.

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This week New York State changed its rules regarding teenage drivers to improve safety on the roadways. Effective immediately, teenage drivers with a learner’s permit obtained at age 16 will be required to wait six months to take their road test to obtain a license. Second, the new law increases from 20 to 50 the amount of hours that the teenage driver must complete, as verified by a parent (15 of those hours during night time) before he or she can get a license. Third, drivers with learner’s permits or a junior license are now limited to one non-family passenger under the age of 21 in the car unless there is an adult in the vehicle as well.

The new rules have been established due to significant statistics reflecting the percentages of teen and young adult drivers in New York car crashes. According to the National Safety Council, motorists aged 16 to 24 comprised 16% of all drivers in New York, but accounted for approximately 26 % of all injuries and New York wrongful death fatalities in 2008. In 2001, the Insurance Institute for Highway Safety reported that the amount of car crashes almost doubled for each additional teenage passenger in a vehicle. The National Highway Traffic Safety Administration reported in 2008 that 16 year old drivers are 3 times more likely to be in a car accident than 17 year olds, and a whopping 5 times more likely to be in crashes than 18 year old drivers!

For those of us with teenage children and impending young drivers in the near future, the new law is a very sensible and proactive approach to improving young driver safety, and I applaud the legislators behind this new legislation.

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Toyota is in the midst of an absolute legal and public relations disaster as the result of its delay in responding to deadly defects in its cars and trucks which have apparently led to at least 34 deaths in the last decade. The problem is sudden acceleration, which has been blamed on floor mat interference and sticky gas pedals, but which many safety experts are attributing to the electronic systems in these vehicles. Toyota has recalled approximately 8.5 million cars, and supposedly repaired about 800,000 to date, but the company has run into two huge public relations and credibility nightmares. First, despite initially claiming that it first learned of the sudden acceleration problem last October, it is now known that a year earlier, in October of 2008, there was an issue with sticky pedals in Europe, particularly in Britain and Ireland. Toyota’s CEO for North America, Yoshimi Inaba, claimed that the company “Did not hide [the problem]…but it was not properly shared…with the United States to see if there was any danger to American consumers.” Sure seems like hiding the problem to this writer.

Second, the Congressional oversight committee found that Toyota had given a presentation that stated “Toyota safety wins”, noting that they had been able to save $100 million by convincing the government initially to allow them to recall floor mats on 55,000 Toyota Camry and Lexus ES 350 sedans rather than recalling the vehicles themselves. This past Tuesday, in testimony to the House Energy and Commerce Committee, James E. Lentz, the president of Toyota Motor Sales U.S.A., informed the committee that the ongoing repairs might “not totally” solve the sudden acceleration problem–certainly not exactly comforting words for Toyota owners nationwide.

To attempt to quell the growing swirl of controversy and anger at the delayed and insufficient response to their defective vehicles, Toyota has announced that they will commence at home pickups of vehicles, reimbursement of consumer’s transportation expenses and free rental cars while cars are being repaired. New York State’s Attorney General has started a website- www.NYToyota-Help.com to provide information about this program. Toyota has also announced that new models will allow brakes to override gas pedals in an added effort to solve the sudden acceleration issue.

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In a front page story in the February 20, 2010 edition of the New York Times, Gardiner Harris reported on confidential FDA reports which have recommended that the diabetes drug Avandia be removed from the market. Apparently, FDA studies have determined that if diabetes sufferers had taken another drug, Actos, approximately 500 heart attacks and 300 cases of heart failure could have been avoided. Avandia, also known by its clinical name Rosiglitazone, is prescribed to patients with Type 2 diabetes. This apparently dangerous drug was linked to a shocking 304 deaths worldwide in the third quarter of 2009, according to a study by the Institute for Safe Medication Practice, a drug safety group

Two FDA researchers, Dr. David Graham and Dr. Kate Gelperin, concluded that “Rosiglitazone should be removed from the market.” There is a significant conflict over what should be done with Avandia. Naturally, the manufacturer, GlaxoSmithKline, is claiming that the reports of cardiac problems as a result of Avandia use are not scientifically definitive and require further study. Senators Charles Grassley, an Iowa Republican, and Max Baucus, a Montana Democrat, who have overseen the FDA study, are sharply critical of GlaxoSmithKline, stating that the company should have alerted patients many years ago of the potential cardiovascular risks of Avandia, thus offering patients the opportunity to take a less dangerous drug for their diabetes. But as early as 2003, according to the Senate investigation, GlaxoSmithKline and the FDA were aware of a GlaxoSmithKline study in which diabetics who used Avandia had substantially more heart problems than those given placebos!

Several years back, Avandia was one of the top selling drugs in the world, but after a 2007 study by a Cleveland Clinic cardiologist suggested cardiac risks from Avandia, the FDA got involved, and sales of the drug took a dive. Mr. Harris also reports that GlaxoSmithKline executives attempted intimidation tactics to prevent independent physicians from notifying patients or other doctors that Avandia posed serious heart risks to diabetics, who die from heart problems 66% of the time. In one egregious example, in 1999, University of North Carolina professor John Buse gave presentations at scientific meetings suggesting that Avandia caused heart problems. As a result, GlaxoSmithKline executives complained to his supervisor and warned of potential legal action against Dr. Buse in an effort to keep him quiet. Dr. Buse ended up signing a document prepared by GlaxoSmithKline agreeing not to publicly discuss his concerns about Avandia. The report mentions another similar incident of intimidation of University of Pennsylvania investigators.

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If you are injured in a New York slip and fall accident or accident involving dangerous premises, it is vital that you get as much evidence as possible while in the store to win in Court or obtain a good settlement. Some examples:

1. Insist on providing a written report to the manager or supervisor of the store or establishment, which you review before signing, and get a copy of that report;

2. When reporting an accident, do not allow the store representative to put words in your mouth (which they love to do) such as that you were looking at the shelves, not the floor, or you were distracted by a child or a cellphone;
3. If you slipped on a substance and there is an open bottle, write down the name of the product. If you slipped or tripped on an item sold in the store, secure this item as it will be of critical importance if your case reaches trial;
4. Take photographs of the accident scene on a cellphone or better yet, a digital camera if you are fortunate enough to have one with you;
5. Obtain the names, addresses, phone numbers and e-mail addresses of any witnesses to the accident;
6. Don’t refuse medical attention if you are injured–take them up on their offer to call an ambulance for you. We have many cases in our office in which the client refused medical attention initially, which is a frequent defense of the insurance carriers for these owners of dangerous premises;
7. Take photographs of any visible injuries such as bruising, swelling, and bleeding;
8. Preserve intact any clothing which has been damaged, torn or has blood stains or stains from a spilled substance;

9. Maintain a diary of how the accident has affected your life, documenting pain, loss of range of motion, inability to perform activities of daily living, doctor’s appointments, and the loss of enjoyment of hobbies and sports that you would normally engage in.

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We have several written articles recently about the dangers of distracted driving, which has led to numerous fatal accidents and serious car crashes, and has become a huge safety issue with people continuing to text after they start driving their vehicles. Now the federal government has decided to get involved. On January 26, 2010, the U.S. government officially banned truck drivers and bus drivers from sending text messages while driving, in a move that was widely supported and promoted by trucking and transportation companies.

U.S. Transportation Secretary Raymond LaHood has made the reduction of distracted driving a priority of his tenure. 19 states previously banned texting while driving, and late last year, New York made texting while driving a secondary offense, by which drivers can only be charged with texting while driving if they are also committing another traffic infraction such as speeding or disregarding a traffic control device. New York Senator Chuck Shumer noted that the ban is “a giant step forward for safety on our roads, but we must do more…” Shumer was referring to a push in Congress to ban texting while driving in cars and mass transit, which has reportedly faced opposition by wireless carriers and the mobile phone industry.

Drivers of commercial vehicles caught texting while driving could face fines of up to $2,750.00. A study by the Virginia Tech Transportation Institute released last year found that truckers were 23 times more likely to be involved in a car crash or close call when texting while driving. The Federal Motor Carrier Safety Administration found in their study that texting drivers take their eyes off the road for an average of 4.6 of each 6 seconds, which at 55mph would have their vehicles traveling a complete football field without the drivers looking at the road!

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At The Law Office Of Mark A. Siesel in White Plains, New York, we represent many clients who are seriously injured as the result of using a dangerous or defective product or machine. Frequently, by the time they come to our office, several days or weeks have passed since the accident occurred, and valuable evidence may no longer be available or has been discarded by the owner of the product.

Thus, if you have suffered injury due to a dangerous product or device, you should do the following whenever possible:

1. Take photographs of the machine, from several angles, and in good light if available;
2. Obtain the manufacturer’s name, address (and phone number if on the machine);
3. Write down the model number, serial number and any other information that is on the machine;
4. Get copies of any operating manuals, instructions or paperwork that accompanied the product upon purchase;
5. Attempt to obtain any service records for the machine, or the names and addresses of any companies that serviced the machine;

6. Obtain records of any modifications or changes that have been made to the device or product over the years.

6. Document your injuries by taking photographs immediately after the accident;
7. Secure the names, addresses, phone numbers and e-mail addresses of any witnesses to your accident;

Often, it will not be possible to obtain all of the above items when the machine is old and records are lost or discarded. However, it is vital to the success of a New York defective products case to have as much information as possible to identify potential defendants including manufacturers, distributors, retailers, repair or service companies and suppliers. The manufacturer or distributor can be responsible for many different dangers, including defective design of the product, negligent manufacture of the product, failure to properly maintain the device, improper or lack of safety labels or warnings, and failure to recall products which have a known defect or flaw.

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In our previous post in this two part series, we examined the causes of motor vehicle accidents and fatal crashes on New York State roadways based on a NYSDOT study called the Strategic Highway Safety Plan 2007. In this article, we look at the State’s finding regarding New York pedestrian accidents, truck accidents, and motorcycle accidents. Approximately 25% of the annual New York fatal motor vehicle accidents involve pedestrians. This is more than twice the national average. 70% of pedestrian accidents and one half of the fatalities in New York State occur in the five boroughs of New York City, but interestingly, pedestrians involved in accidents in the suburbs are more likely to die in these accidents than in New York City. It is also significant that almost ¼ of all pedestrians injured or killed in the last year of the study (’05) were under 18 years of age.

Accidents between a car and large truck account for 10% of fatal motor vehicle accidents in New York, and approximately 5% of the serious personal injury accidents. From 2002 through 2005, there was a range of 140-150 deaths per year in New York truck accidents. The Department of Transportation determined that the three main causes of these accidents was: following too closely-10%; driver inattention or distraction-9%; and failing to yield the right of way-7%. The majority of all truck accidents are caused by aggressive driving by one of both of the drivers involved.

Motorcycle fatalities and motorcycle accidents are on an upward trend, due to the steady popularity of motorcycles, inexperienced riders, the attraction of “extreme” motorcycle riding, and the price of gasoline. Motorcycle deaths on New York highways rose from 155 in 2003 to 163 in 2005.

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The New York State Department of Transportation (NYSDOT) investigated the causes of New York car crashes on state highways from 2002 through 2005 in the Strategic Highway Safety Plan 2007. The good news coming out of the study is that from 1996 through 2005, fatal accidents on New York roadways have declined 10%. Further, although driving while intoxicated continues to be a significant problem in causing roadway deaths, the number of people killed on New York state roadways from driving while intoxicated has dropped from 979 in 1981 to 382 in 2005. The most significant problems causing serious New York car crashes and fatal accidents are aggressive driving, DWI’s and speeding.

There are 113,000 miles of highway in New York State and 16,000 of those highways are operated by the state. Intersection crashes account for approximately 25% of all highway fatalities in New York. There were 77,161 fatal intersection crashes in 2005. Overall, there were 142,287 fatal and personal injury accidents in 2003; 133,314 in 2004, and 128,581 in 2005. Rear end and left turn accidents are responsible for about ½ of all New York motor vehicle crashes. There were 479 fatal accidents from cars overturning or colliding with fixed objects in 2005, and 203 fatal accidents or injuries from crashes in construction zones.

From 2003-2005, failing to yield the right of way contributed to 16% of New York fatal car accidents; following too closely 13.5%; and unsafe speed was partially responsible for 11% of the deaths on New York highways. These driver behaviors have remained constant despite the reduction in overall accidents between 2003 and 2005.

In Part 2 of this series, we will the DOT’s findings regarding New York motorcycle accidents, large truck accidents and pedestrian accidents.

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The family of Michael and Guy Bastardi, two of the victims of the horrific July 26 fatal motor vehicle crash on the Taconic Parkway which killed eight, commenced a lawsuit in the Westchester County Supreme Court this week. The lawsuit, as announced by Roseanne Guzzo, the daughter of 81 year old Michael Bastardi and sister of 49 year old Guy Bastardi, was filed against the estate of Diane Schuler, the intoxicated driver of the wrong way vehicle which struck the Bastardi car, and Warren Hance, (Schuler’s brother) the owner of the Ford Windstar minivan Schuler was driving with a blood alcohol level of 0.19 and THC (the active ingredient in marijuana) in her system.

The lawsuit seeks damages for the wrongful death of Michael and Guy Bastardi, as well as damages for the pain and suffering of both men. Under New York State law, the main elements of damages would be for pain and suffering and wrongful death. Wrongful death damages are limited to “pecuniary loss.” What this means is that if Ms. Guzzo is the plaintiff, for the wrongful death of her brother and father, her damages would be limited to whatever income her father or brother gave her on a regular basis. She could not recover for the emotional loss of her brother under New York State law, but would have a claim for the “loss of parental guidance” of losing her father in the tragic accident.

However, the more compelling issue in this case will be whether the Bastardi family can prove, as they have alleged, that either or both of the Bastardi men survived the accident, even for a few minutes, in order to recover damages for their pain and suffering. Apparently, the attorney for the Bastardis has statements from some first responders indicating that both men were still breathing and responsive immediately after the accident. In order to establish damages for pain and suffering, it is not enough to show that the men survived the horrific impact, but it must also be shown that they suffered “conscious pain and suffering.”

It is expected that the attorney for Daniel Longo, the other man killed in the Bastardi vehicle, will soon file a lawsuit for his wrongful death. One of the main issues in this case will undoubtedly be the extent of the insurance coverage, which would be sought on behalf of all three men, and will clearly be inadequate in compensating the two families for their horrible losses. Ms. Guzzo did state that the lawsuit was not filed for compensation, but to “shine a public spotlight on drunken driving.” There is no doubt that this tragic accident, lawsuit or not, is and will be in the public spotlight for a very long time. It is also a certainty that any damages the families recover in this case pale in comparison to the losses they have suffered.

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