When Simple Becomes Complicated

Currently, car accident cases center on determining human error – which driver was responsible for the accident.  The evolving world of car technology is going to change the future of how some car accident cases are litigated.

Self-driving cars, such as Tesla, are being touted as the future of cars.  However, there have been accidents involving these cars.  As recently as March 23, 2018, a Tesla Model  X SUV, with the Autopilot feature engaged, slammed into a concrete highway divider and caught fire, killing the driver.

When a car accident cases goes to court now, generally the judge or jury listens to testimony from each driver and based upon whose testimony they found to be more credible, they make a determination of who is at fault.  Occasionally, experts such as accident reconstructionists will offer testimony to aid the judge or jury, but usually just the drivers and/or witnesses who saw the accident will testify.

With more and more self-driving cars and cars with technology such as auto-braking, we may see some cases move from the a determination of driver error to a product liability case where the manufacturer of the vehicle will be a defendant as well.  This will also require expert testimony if these cases go to trial.  A judge or jury will have to review the evidence of competing experts in order to make their determination on liability.  This change will possibly create an economic “trickle down” affect wherein the increased cost to vehicle manufacturers for insurance and the cost of litigation may be passed on to the consumer with higher vehicle prices.

Additionally, on average, most car accident cases settle without going to court because insurance companies, through their own investigations may determine that its own driver(s) were at fault, and a settlement will occur, which allows the injured party to be compensated fairly quickly.  However, with a product liability case, you could be talking about years before the case is resolved or adjudicated.

Technology generally makes our lives more convenient, but you always have to consider the law of unintended consequences.

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Dram Shop Laws in Maryland

Dram Shop laws make an establishment or person that continues to serve alcohol to a visibly intoxicated person legally liable if that intoxicated person injures or kills someone.  This is different from social host liability, which holds that adults who provide alcohol to underage drinkers can be held civilly liable if the underage drinkers later harm someone else while intoxicated.

Currently, 43 states and DC have some form of a dram shop law.  The states without any such law are Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota and Virginia.  Note that Maryland does have a social host law that was created in 2016.

In recent years, the Maryland legislature tried to create a dram shop law.  This was in response to the August 2008 death of 10-year-old Jazimen Warr.  Michael Eaton, who had been drinking at the Dogfish Head Alehouse in Gaithersburg, Maryland, slammed into the vehicle in which Jazimen was a passenger.  It’s estimated that Eaton was driving between 88 to 98 mph when he struck the Warr vehicle.  Jazimen, who was a passenger in the back seat, was killed.

Jazimen’s family filed suit against a number of defendants, including Dogfish Head Alehouse.  Dogfish Head Alehouse was eventually let out of the lawsuit when its motion for summary judgment was granted.  The trial court was bound by the case law in Maryland, which held that dram shop liability was not a recognized cause of action in Maryland.  The case went on appeal all the way to Maryland’s highest court.  In 2013 the Court of Appeals held in a 4-3 decision, that it would not overturn established case law in Maryland and would not create a dram shop law.

In 2011, Maryland legislator, Kathleen Dumais introduced a bill to create a statutory dram shop law, but the bill did not pass.  There was discussion by Dumais in 2016 that she would re-introduce this same bill, but it’s not clear if she ever did or not.

Proponents of dram shop laws say that these types of laws can limit the number of drunk drivers by creating an incentive for bars and restaurants to cut off patrons that they feel are intoxicated and increase publicity surrounding the over-serving of patrons. Additionally, it allows injured parties and their families to have another source of possible financial recovery by creating possible exposure to the insurance carriers of restaurants and bars that have been sued.

Opponents of these types of laws argue that by removing the personal responsibility component, the financial burden is shifted to bars and restaurants, including the possibility of higher insurance premiums.

Judge Adkins, who wrote a very strong dissent in the opinion in Warr case was the author of the majority opinion that created social host liability.  In many ways, the progression from social host liability to dram shop laws seems to be the next natural step and it unlikely that this issue won’t come up again in Maryland.

I’ve Been in a Car Accident – Now What?

Getting into a car accident can be very stressful, especially if it wasn’t your fault.  One of the things we get asked the most is what to do after you’ve been in a car accident.  Here is a quick list of some of the things to do and remember.  This list contains some pointers, but by no means should be considered an exhaustive list that covers all situations and scenarios that can surround a car accident:

  1. CALL 911:  If anyone is injured, immediately called 911 and ask for an ambulance, as well as the police.
  2.  EXCHANGE INFORMATION: Make sure you exchange information with the other driver, including your names, phone numbers, addresses, make and model of the vehicles, including license plate numbers, and insurance information from any drivers involved.  An easy way to store some of this information is to take pictures of driver’s licenses, license plates and insurance cards.  If there are passengers in any vehicles or witnesses that identify themselves, try to obtain their information as well.
  3. TAKE PICTURES:  Take pictures of any damage to vehicles involved in the accident, the accident scene, or anything that may have contributed to the accident (i.e., road construction, objects in the road, icy patches, etc.).
  4. BE CAREFUL WHAT YOU SAY:  It’s completely appropriate to check on drivers and passengers in the other car(s) and see if they need medical attention or help. However, never admit fault for the accident, not even to the police.  Even if you think you were at fault, it may not be immediately clear who was actually at fault or contributed to the accident.  DO NOT allow the other driver’s insurance company to take a recorded statement from you.  If you have any suspicions that the other driver(s) may try to blame you for the accident, you do not have to speak with their insurance company at all.
  5. CALL YOUR INSURANCE COMPANY: Contact your insurance company as soon as it’s practical.  While you should answer any questions about the accident truthfully, be mindful of what you say, especially if the insurance company is taking a recorded statement.
  6. IF YOU’RE INJURED, SEE YOUR DOCTOR:  Delaying your medical treatment can impact your medical diagnosis and recovery time as well as have an effect on how your case is evaluated for settlement by the other driver’s insurance company.
  7. DON’T SETTLE TOO QUICKLY:  Some insurance companies will offer you a quick payment in exchange for a settlement of your case and a release of all claims.  In the state of Maryland, as a general rule, you have 3 years from the date of the car accident to file a lawsuit, so before settling your case, it’s important to make sure all of your injuries have been diagnosed and if possible, treated.  Once you settle your case, you cannot come back for more money.
  8. IF IN DOUBT, CONTACT A LAWYER: If you’re unsure of your options, including what costs and expenses you can recover and what your case is worth, contact an attorney.  Consultations for these types of cases are almost always free.

Maryland Can Now Suspend Your License Even if You Weren’t Driving

Maryland’s highest court has held that the MVA can suspend your license for refusing a breath test, even if you weren’t driving OR even attempting to drive your vehicle.

The Court’s opinion stated that your driver’s license may be suspended if you refuse a breath test if the police “reasonably” believed that you were driving or attempting to drive.  The high court overturned lower court rulings that held it had to be proven that you were driving or attempting to drive.  Now, an officer just has to “reasonably believe.”  It will be interesting to see how this interpretation of the statute manifests.

Our advice, if you’ve been drinking, don’t get behind the wheel of your car.  Even if it’s to warm up while waiting for a cab or Uber, or if it’s to sleep it off.  If you have to get in your car to wait or sleep it off, get in the back seat.

 

 

Is It Down to the Wire?

You’ve doubtless seen articles and social media posts about the release of the new iPhone 7.  One of the most talked about features is the lack of a headphone jack and the new AirPods (wireless earbuds).   Companies are trying to keep up with the demand for the newest and best technology and most consumers prefer wireless.

Convenience and technological advancements aside.  An often overlooked law is the fact that in Maryland it is illegal to drive with earphones in both ears or headphones covering both ears.  The Maryland Transportation Article Section 21-1120  says you “may not drive a motor vehicle on any highway…in this State” while wearing over or in both ears a headset or earphones attached to a radio, tape player, or other audio device.

Some may want to argue what the term “attached” means.  Does there have to be a physical attachment by the use of wired headsets or earphones?  Is it okay if you use wireless earphones or headsets and have both ears covered?

The answer is “no.”  The use of bluetooth or wireless headphones or earbuds in both ears is a violation of Maryland law and punishable by a fine of $45.00 and 1 point on your license.

The rationale behind this law is that having both ears covered prevents you from giving full focus and attention to driving.  Some experts have even referred to it as a form of sensory deprivation while operating a motor vehicle.  In 2015, Maryland had 520 traffic fatalities.  This was nearly a 20% increase from 2014 and ended a downward trend in traffic fatalities in Maryland from 2007-2014  (30% decrease from 2007-14).  Nationwide, there were 38,300 traffic fatalities in 2015.  This represented an 8% increase from 2014.

Understandably, police are continuing to crack down on distracted driving and the lack of a wire from your headset or earphones to your phone won’t save you from a ticket, a point on your license and a possible court appearance.  There is no need to make the road anymore of a dangerous place than it is already.  The next life you save by reducing your distractions while driving could be your own.