Toyota Agrees to Pay 1.2 Billion To Settle Federal Criminal Investigation

March 26, 2014 by Mark Siesel

Last week, the U.S. Justice Department announced that Toyota will pay 1.2 billion dollars in fines to settle a four year long criminal probe commenced by the Justice Department arising out of sudden acceleration problems that caused the wrongful death of occupants of Toyota vehicles highlighted by a tragic crash in August of 2009. The acceleration issues were caused by improper floor mats which would get jammed with the accelerator, as well as defective gas pedals. Initially, Toyota made the extremely poor decision to blame many of the accidents on “driver error”, but it became apparent from a safety point of view and the public relations debacle that ensued that this was a very bad strategy, indeed.

The 1.2 billion dollar penalty is by far the largest ever paid by an automobile manufacturer to settle a criminal investigation. In addition to the huge monetary penalty, Toyota has agreed to have a monitor to oversee its safety communications, its response to accident reports and to review its processes for issuing safety bulletins. Previously, Toyota had paid much smaller fines of 16.375 million in 2010 for delay in reporting pedal and floor mat defects, and $17.35 million in 2012 in a separate safety recall.

The sudden acceleration issues came to Toyota’s attention in 2009 with numerous reports of “runaway cars.” This was highlighted by a particularly tragic accident in San Diego in August of 2009 when five people were killed as the result of an improper floor mat which trapped the accelerator in a 2009 Lexus ES. In that accident, 911 recordings caught in horrific detail the occupants’ ordeal as the vehicle accelerated to 113 mph before flying into an embankment.

Part of the federal investigation examined whether Toyota had provided false and/ or misleading statements to the National Highway Traffic Safety Administration (NHTSA) when it was investigating the sudden acceleration issues several years ago. At that time, Toyota recalled approximately 8.1 million vehicles. Toyota still faces enormous costs in defending against hundreds of personal injury lawsuits that have been consolidated in California state and federal courts, in which settlement talks are proceeding. Bloomberg reported that 131 of approximately 300 cases have been settled in principle for undisclosed sums, as is always the case in settlement with corporations, which require confidentiality agreements. Further, last year Toyota agreed to pay about 1 billion dollars to owners of Toyota vehicles who alleged that their vehicles lost value as a result of the safety recalls. Between personal injury, wrongful death, and warranty claims, and the deal with the federal government, Toyota has paid approximately $3 billion. However, analysts estimate that the company may earn as much as $19 billion in the 2014 fiscal year.

There is no doubt that the Toyota criminal penalties and poor response to the safety issues in 2009 led to GM’s decision last month to commence massive recalls of 2005-2009 Cobalts, Ions, and Pontiacs with defective ignition switches resulting in many deaths and serious injuries from the loss of power to safety systems, in particular, power steering and airbags. Certainly, the fact that Congress intends to conduct hearings into GM’s ignition switch safety recalls also contributed to GM’s strategy. Further, GM’s sudden change in strategy to attempt resolution of many of the personal injury and wronged death claims is undoubtedly influenced by Toyota’s maladroit response to its safety recalls and the aftermath, which resulted in a huge payout to the feds that GM is seeking to avert.

Perhaps the Toyota and GM safety issues, which have cost countless lives and resulted in grievous injuries, will now be the impetus for the Motor Vehicle Safety Act, which failed to pass the Congress in 2010. Under this long overdue and sensible legislation, fought and defeated by auto industry lobbyists and their cronies in Congress, more funds would be provided to the NHTSA to investigate automobile defects; publicize a database of early warnings that auto manufacturers issue to the government; and authorize the agency to assess larger fines against corporations that fail to timely recall defective automobiles.

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New York’s Highest Court Clarifies No-Fault Law And Helps Automobile Accident Victims

October 28, 2013 by Mark Siesel

The No-Fault Law is an absolute albatross around the necks of injured people and their attorneys in New York State, and has been so since its implementation in 1974. The basic purpose of the law when it was promulgated was twofold: to allow for the expeditious handling of automobile accident claims which were deemed to meet what is known as the “no-fault threshold”, and second, to root out what was perceived to be fraudulent, non meritorious claims. One of the main reasons that this antiquated law needs to be significantly modified in 2013 is that when the law was placed into effect, there were no MRI’s, CAT Scans, and other radiological examinations which could conclusively determine whether the injured driver or passenger had suffered a “soft tissue” (cartilage, ligament, tendon, spinal disc) injury . Thus, the inclusion of a fracture as a “no-fault threshold” injury, (because this injury could be determined by x-rays), but not, for example, a herniated disc of the neck or back, or a torn tendon or ligament.

Thus, as the No-Fault law presently exists, a fractured toe or pinky automatically meets the requirements of a no-fault “threshold” injury, but a person who suffers a torn tendon, ligament, cartilage or other “soft tissue” injury such as a herniated disc, which is in all likelihood, much more serious than a broken toe (for which there is no treatment), may have no case under the No-Fault law!

The No-fault threshold includes several very specific injuries suffered in motor vehicle accidents, as well as three general types of injuries contained in three sections of the statute which are poorly worded, confusing, and constitute a huge percentage of the litigation instituted by the no-fault insurance companies and their lawyers in contesting No-fault claims. The definitive sections are as follows:

Significant disfigurement;
A fracture;
Loss of a fetus;
Permanent loss of use of a body organ, member, function or system.

The problems arise in interpreting the following three sections: 1) “permanent consequential limitation of use of a body organ or member; 2) “significant limitation of use of a body function or system”; and 3) “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” That last section is a true example of legislators gone amok.

The problems arise in the interpretation of many of the terms—for example, what is “significant limitation of use”? Isn’t that different for each person who is injured in an accident? What is a “consequential limitation”? What are the “material acts which constitute a person’s usual and customary daily activities”? As can be seen, the vague and inconsistent terminology utilized by the drafters of the No-Fault Law was fraught with difficulty from the inception of the statute, almost forty years ago.

Another problem that has arisen, and which brings us to the point of this article, is interpretations of the law by judges (seemingly supportive of the insurance industry) adding in requirements which were never part of the original statute, and which make claims and cases even more difficult to settle or win in Court. The Ramkumar decision is a classic example of this. In this case, the plaintiff was cut off from treatment by his own no-fault insurance company after only five months of treatment, despite the fact that he had suffered a torn meniscus in the accident in question, for which he required surgery. The lower Court dismissed his case, stating that he had not properly offered documentary evidence and a sufficient explanation for why he didn’t continue treatment after his no-fault insurance company had terminated his benefits. Essentially, the lower Court ruled that after the no-fault carrier booted him from coverage, Mr. Ramkumar was required to either continue treatment with his health insurance company, or if no health insurance was available, provide a “reasonable explanation” why he didn’t pay for his treatment out of his own pocket. Of course, nowhere in the antiquated No-Fault law is this requirement included. Fortunately, the majority in the Court of Appeals noted that although a plaintiff is required to have some explanation why he stopped treatment for his injuries after only five months, not having health insurance nor money to pay for medical treatment out of his pocket WAS a reasonable explanation. Further, the Court stated that the case should not have been dismissed because the evidence showed that the treating surgeon found that the meniscus permanently lost stability due to scar tissue, which Mr. Ramkumar will have for the remainder of his life.

The other irony here is that the no-fault carriers send injured victims of car accidents to no fault “IME”S (Independent medical examinations, which are anything but independent) within weeks, and sometimes days, after car accidents, to be conducted by “examiners” who are paid for by the no-fault insurance companies for a specific purpose—to find that there is nothing wrong with the injured person, thus permitting Allstate, State Farm, Geico, Progressive et. al. to stop paying for treatment. Of course, this is exactly what happened with Mr. Ramkumar, although he was fortunate enough to have obtained five months of treatment before thrown off coverage by the insurance carrier he was paying premiums to.

The moral of this story is simple. If you really want to root out fraud, call, fax, email or text your local legislator (if you are fortunate enough to have a cell phone number for the legislator) with a simple message. The No-fault law is unfair. It is outdated. When it was written, there was no means to determine if someone had suffered a “soft tissue” injury, but in case you missed it, now we have MRI’s, CAT Scans, Bone Scans, EMG’s, and numerous other tests for these injuries. The No-Fault law protects the car insurance companies at the expense of innocent victims of automobile accidents. If you want to examine fraud, take a look at no-fault exams by insurance company doctors, who perform dozens of three minute “exams” each week on injured people with the conclusions in their reports written before the person walks into the examiner’s office.

Hopefully, if enough people do this, we will finally get traction with Governor Cuomo, who does not believe this is a problem, apparently.

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Fatal Accident On The Saw Mill River Parkway

July 12, 2012 by Mark Siesel

On Sunday, July 8, 2012, there was a fatal accident on the Saw Mill Parkway in Yonkers near the Rumsey Road exit. At approximately 12:15 PM that Sunday, a Mercedes driven by 36 year old Kenyatta Garner of South Carolina was traveling northbound at a reportedly excessive speed when Garner struck a Honda Civic in the right lane and lost control of the vehicle. According to the Westchester County Police, the Garner vehicle then struck a center divider, hit an overpass for the eastbound Cross County parkway, and flipped over numerous times. According to a police spokesman, the Mercedes then “disintegrated”, with twisted metal, debris, and a trail of bodies left behind.

Two passengers in the Garner vehicle were killed when they were ejected from the car: Tony Fortune, 46, and Shanikka Hunter, 28, both of the Bronx. Mr. Fortune was a front seat passenger who was reportedly ejected from the sunroof, and Ms. Hunter was a rear seat passenger. It is believed that neither Mr. Fortune nor Ms. Hunter were wearing seat belts. The other three occupants of the car also suffered serious injuries and were hospitalized at Jacobi Medical Center in the Bronx, with one listed as critical. However, the extent of their injuries has not yet been disclosed.

The driver of the Honda Civic initially struck by the Mercedes, 23 year old Benjamin Ferder of New Rochelle, was fortunately not seriously injured, and was treated and released from Jacobi Medical Center.

The Saw Mill Parkway is one of a group of Westchester County Roadways which is particularly dangerous, (along with the Bronx River Parkway and Hutchinson River Parkway), in that the roadway is narrow, a large portion of the roadway has no shoulders, and there are many short entrances to the parkway making it very difficult to merge with traffic already flowing at 60-70 m.p.h. The Saw Mill Parkway is approximately 30 miles in length, beginning from the Henry Hudson Parkway in Yonkers to I-684 in Bedford. Since 1980, the parkway has been maintained by the New York State DOT, and approximately 95,000 vehicles use the parkway on a daily basis. Construction of the parkway began in 1926, when vehicles were obviously a lot smaller and didn’t travel at speeds over 60 miles per hour. World War II put a halt to construction for a few years in the 1940’s. Widening the parkway was considered in the 1950’s and 1960’s but never happened, and vehicles clearly are travelling at faster speeds than ever with distracted driving becoming a bigger issue, adding to the dangers overall.

It is likely that the final determination of the Westchester County Police will be that the primary factor in this horrific car accident was excessive speed, and certainly toxicology tests will be done to examine whether intoxication played a role. However, there is no doubt that the configuration and narrow boundaries of the Saw Mill Parkway add to the dangers of high speed driving on this roadway. At some point in the future, maybe the issue of widening this well traveled parkway will be reconsidered and implemented.

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New York Car Accidents—Liquor Liability Case In White Plains Federal Court

April 23, 2012 by Mark Siesel

26 year old Rachel Fraulo of Westport, Connecticut recently commenced a “Liquor liability” lawsuit against an out of business Mount Kisco tavern, O’Malley’s, and its two owners in Federal Court in White Plains arising out of a serious car crash in January of 2009. She alleges that as a result of the accident, she suffered traumatic brain injury (TBI), permanent vision impairment, several fractured bones and neck injuries. The facts are as follows. At approximately 3:30 AM on January 11, 2009, Rachel Fraulo was a passenger in an automobile driven by her friend Brian Vittorini, 34, when the vehicle driven by Vittorini struck a guardrail at the end of the southbound exit ramp on I-684 in Katonah, adjacent to Route 35.

The suit charges that prior to the accident, Vittorini was visibly intoxicated after having consumed “dozens” of Jack Daniels and Coke cocktails at O’Malley’s. Under the New York State Dram Shop Act, if it can be proven that the bar’s employees served Vittorini alcohol after observing that he was “visibly intoxicated”, and he then drove while intoxicated and caused injuries to his passenger, the bar would have liability under the Dram Shop Act.

At the time of the accident, Mr. Vittorini refused a blood alcohol test, and the Bedford Police Chief determined that the accident was caused by a combination of speed, alcohol and failure to wear seat belts. Subsequently, Vittorini pled guilty to charges of vehicular assault and driving while intoxicated. Importantly for Ms. Fraulo’s case, those convictions can be introduced into evidence during a trial of the case, with obviously significant impact on a jury when they have to determine fault. Apparently, Ms. Fraulo previously reached an undisclosed financial settlement with the insurance company representing Mr. Vittorini. If a jury were to decide that Mr. Vittorini was primarily at fault for the accident, there would have to be a determination by the Court as to how this previous settlement affects any damages awarded by the jury. In sum, a plaintiff in a personal injury lawsuit is not entitled to receive what is called a “double recovery”, meaning that the plaintiff cannot get damages for the same injuries twice. However, the plaintiff is entitled to be compensated for all potential damages, including pain and suffering, loss earnings, lost earnings potential, medical and hospital expenses, both past and present, and “loss of enjoyment of life.”

In opposition to Ms. Fraulo’s case, the defense has undoubtedly asserted a “seat belt defense.” If they can prove, through expert testimony, that Ms. Fraulo was not wearing her seat belt at the time of the accident, and can demonstrate that some or all of the injuries suffered by Ms. Fraulo would have been avoided or lessened if she were wearing her seat belt, her damages will be reduced by the percentage of her own fault for failure to comply with section 1229-c of the Vehicle & Traffic Law, which mandates that seat belts be worn by drivers and passengers of motor vehicles.

The defense will further claim that Ms. Fraulo was also intoxicated, and should not have entered the vehicle with Mr. Vittorini knowing that he was intoxicated. It is unclear whether they will be able to prove this defense or not, but it can be particularly damaging if the jury is convinced that Ms. Fraulo was at fault for entering the car knowing that Mr. Vittorini was “visibly intoxicated.”

One other point which can be a significant issue in this case is whether O’Malley’s had a liability insurance policy which contained a provision for Dram Shop or Liquor Liability coverage. This type of insurance is very expensive, and in my experience, many bars and nightclubs do not carry Dram Shop insurance for that reason. If O’Malley’s did not have Dram Shop coverage, Ms. Fraulo also has a claim against the two owners of the bar, ostensibly to assert a claim against their assets if they were uninsured for the accident. I would assume that prior to commencing a case in federal Court, Ms. Fraulo’s attorneys have determined that either O’Malley’s has sufficient insurance coverage, or that the owners have assets to make the lawsuit worth pursuing.

The case has been adjourned to October of 2012 for trial of this action after a hearing this month. We will follow this case when it commences in October.

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Fatal Wrong Way Accident Of Off-Duty Mount Vernon Police Officer

April 16, 2012 by Mark Siesel

On March 29, 2012, at approximately 2:30 AM, off duty Mount Vernon Police Officer Reginald Velez was killed when he drove his vehicle the wrong way on the southbound lanes of I-95 and his vehicle was struck by a tractor-trailer. An investigation of the causes of the fatal car accident by the NYPD continues, as does the local police investigation. It has been reported that prior to the 2:30 AM accident, Officer Velez had been to the Isla Verde bar in the Bronx, as well as to a local diner with friends, although it is unknown at this time whether Velez had anything of an alcoholic nature to drink at Isla Verde.

In recent years, there have been a multitude of wrong way accidents on Westchester Parkways and highways, most notably being the July, 2009 tragic accident involving Diane Schuler, who drove southbound in the northbound lanes of the Taconic Parkway with a blood alcohol concentration (BAC) of 0.18%, more than double the legal limit. Schuler was driving with her infant daughter, five year old son, and three nieces in the car. She hit a northbound vehicle head on, causing the death of the three men in the northbound car, her daughter, three nieces, and her own death.

Until toxicology results are obtained (most likely by mid May), it will be unknown if alcohol played any role in Velez' untimely death. His fiancee has stated that she believed fatigue (due to many hours of overtime) was a significant factor in the accident. Further, a bartender at Isla Verde was quoted as saying that Velez "did not ask me for for anything and didn't drink." However, there is no question that the bar could face civil liability under the New York Dram Shop Law to members of Velez' family (not his fiancee as she was not his wife at the time of the accident) if it is found that the bar served Velez alcohol while he was "visibly intoxicated" and that this intoxication led directly to Velez' fatal accident. Therefore, the statements of the waitress must be considered within the context of the possibility of a possible lawsuit.

The NY City Medical Examiner concluded that Officer Velez died of blunt force trauma to his torso. Upon impact, Velez' 2002 white Lexus sedan burst into flames. The driver of the tractor-trailer, who was uninjured, noted that he had no time to avoid the accident, which occurred near exit 11 on the northbound lanes of I-95.

We will report further on the release of the toxicology results.

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NYC Taxi Passengers Suffer Facial Injuries In Unbelted Accidents

March 12, 2012 by Mark Siesel

In a story by Heidi Evans in the March 11, 2012 edition of the New York Daily News, it was reported that passengers in New York City taxicabs are suffering numerous facial injuries due to their failure to utilize rear seat belts. For some reason, many people (this writer included) seem to have a different perspective on car safety when they are in a taxi cab (ignoring seat belts) than when they drive themselves and are more vigilant about seat belt usage.

The issue is compounded by the fact that New York City cabbies frequently drive quite aggressively, make short stops, exceed the speed limit, pass on the right, and cut in and out of lanes. These dangerous maneuvers occur while the driver is attempting to avoid other traffic, bicyclists, pedestrians, and buses.

Pedestrians are suffering facial injuries after striking the glass partition, including broken noses, fractured teeth, abrasions and even brain trauma after a short stop or collision with another vehicle. The distance between the partition and the passengers can be no more than 16 to 19 inches, not much space when the taxi comes to a sudden stop. Rear passengers are routinely being treated at NYC emergency rooms after striking their faces on cup holders, sharp edged credit card machines, change cups and steel bolts.

Dr. Lewis Goldfrank, the chairman of the emergency departments at Bellevue Hospital and NYU Langone, walks to work each day rather than take taxis after observing the severe injuries suffered by taxi passengers he encounters in his daily experience. He states that the only time he noticed a reduction in injuries was at the inception of the TLC campaign airing recordings of Joe Torre, Ed Koch and other prominent New Yorkers reminding passengers to “buckle up.”

Cab drivers quoted in the article blame riders, noting that they are often oblivious, focused more on their smart phones than taking the time to put on their seat belts. Evans reports that there are 485,000 daily cab rides in New York City by 13,237 yellow taxis, with the vast majority being safe. However, a TLC survey reportedly reveals that 2 out of 3 rear seat passengers don’t use seat belts.

Mayor Bloomberg’s effort to create a uniform taxi fleet includes new taxis next month, which will be equipped with a purportedly safer partition, subject to federal crash testing for the first time. However, in addition to making partitions safer, and removing sharp objects such as credit card machines, cup holders and steel bolts, clearly there must be a renewed effort to ensure that passengers use seat belts if the hope is to improve safety in NYS taxicabs.

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Fatal Car Crashes Increase Among Teen Drivers

February 28, 2012 by Mark Siesel

In a report by the Governors Highway Safety Association (GHSA), which reviewed data for all 50 states and the District of Columbia, fatal accidents involving 16 and 17 year old drivers increased 11% for the first six months of 2011. This trend, if determined to be the same for the second half of the year, would end an 8 year period of decline in deaths of teen drivers.

Total deaths of 16 and 17 year old drivers during the first half of 2011 increased from 190 in 2010 to 211 in 2011. More specifically, there was an increase in 16 year old fatalities from 80 to 93, and an increase in 17 year old deaths from 110 to 118. There were increases in 23 states, 19 states had reductions in deaths, and 8 states along with the District of Columbia did not have a change in the first six months of 2010 and 2011. The states with the biggest increases in fatalities were Florida, Texas and North Carolina.

The increase in teen deaths is in contrast with data from the National Highway Traffic Safety Administration (NHTSA), which has released an estimate that total motor vehicle deaths in the first half of 2011 decreased approximately 0.9%.

The author of the GHSA study, Dr. Allan Williams, has attributed the teen driver fatality increases to a leveling off of the benefit of Graduated Driver Licensing Laws, now that these laws have been in effect for several years. Additionally, Dr. Williams points to an improving economy as another factor to the statistics, with more teen drivers on the road. The GHSA suggests ways to combat this disturbing trend, which include improvements in driver education, parental involvement in establishing safe driving habits for their children, and strengthening traffic regulations. One concrete and absolute measure is to absolutely prohibit the use of any hand held cell phone or electronic device while driving, which is already illegal in the State of New York.

For example, texting while driving is now a primary traffic infraction in New York State (meaning that the investigating police officer does not need to find another violation such as speeding or following too closely to issue a texting while driving ticket). Texting while driving now leads to 3 points on the driver’s license, and fines with surcharge of approximately $235.00.

Traffic deaths will generally rise in the second half of the year, due to summer driving, vacations, and holidays known for higher accident levels including July 4th, Labor Day, Thanksgiving and Christmas.

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NHTSA Study—Analysis Of Fatal Car Accidents 2009-2010

December 22, 2011 by Mark Siesel

In an analysis of fatal car crashes across the United States for the years 2009 to 2010, the National Highway Traffic Safety Administration (NHTSA) reports that 19 states had an increase in fatalities. However, there were a total of 32,885 traffic deaths in 2010, which was actually a decrease of 2.9% overall from the 33,883 deaths which occurred in 2009. The biggest increase in auto fatalities was seen in Connecticut, where there was an increase of 42% with 224 deaths in 2009 and 319 in 2010. Connecticut officials claim that to form a correct determination, a study should be conducted over a 3-5 year period, because there was a 26% decrease in fatalities from 2008 to 2009 when the economy was at its worst with the onset of the recession.

Other states which had the largest increases in fatalities between 2009 and 2010 were in New Hampshire (16%); Wyoming (16%); Kansas (12%), and Indiana (8.8%). The states with the largest increase in fatal car crashes between 2009 and 2010 were Connecticut, with 95 more deaths, Michigan, with 70 more, Pennsylvania (68 ), Indiana (61) and Ohio with an increase of 58.

Thirty one states, the District of Columbia, and Puerto Rico had reductions in the numbers of traffic deaths between 2009 and 2010. California had the most substantial decrease in fatalities, from 3,090 in 2009 to 2,715 in 2010, which was a 12% decrease. Interestingly, due to the volume of drivers in California as compared to the entire pool of drivers in the United States, California’s 12% drop in deaths accounted for 37% of the national decrease.

California’s 2,715 fatalities were the lowest in the state since 1944, according to the California Office of Traffic Safety. They attribute the substantial decrease to high visibility police enforcement, DWI checkpoints, public awareness programs, safer vehicles, improved road design, quicker EMS response and their statewide safety plan.

Deaths due to DWI decreased 4.9% nationwide in 2010 from 2009. There were 10,228 fatalities in 2010, which accounted for 31% of the overall nationwide deaths, a slight decrease from the 32% in 2009 when there were 10,759 alcohol related deaths in the United States.

Here in New York, the NHTSA study shows that there were 1,158 fatalities in 2009 and 1,200 in 2010, a 3.6% increase. Alcohol accounted for 318 deaths in 2009 and 364 in 2010, so that there was an increase from 27% to 30% of alcohol being the causative factors in road fatalities between 2009 and 2010 in New York.

From 2000 through 2010, fatal car accidents decreased in 47 states and Washington D.C., and increased in Delaware, Connecticut and Hawaii.

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New York Car Accidents--The Emergency Doctrine

November 21, 2011 by Mark Siesel

A recent decision by the Court of Appeals, New York’s highest Court, in the case of Lifson v City of Syracuse and Klink highlights the “emergency doctrine”, which can have a huge effect in motor vehicle accident cases, as it did in this case. Irene Lifson, along with the defendant Derek Klink both worked in the MONY Plaza, a large office building in Syracuse, New York. On February 29, 2000, at approximately 4:00 PM, Mr. Klink made a left turn heading westbound near the building where many employees cross the street to get retrieve their cars. As he was making his left turn, Mr. Klink claimed that he was momentarily blinded by the sun, and his vehicle struck and killed Ms. Lifson.

During the wrongful death trial, Klink’s attorney requested that the jury being given the emergency charge, which states in essence that if a driver is confronted with a “sudden and unexpected” condition, not of his or her own making, which leaves little or no time for deliberation, the driver may not be held responsible if his or her actions were reasonable under the circumstances. Giving a jury the emergency instruction is a very powerful and persuasive advantage for a defendant, since it provides the jury with a means to absolve the defendant of all responsibility for his or her negligence, and coming from the presiding judge, implies (even if not intended this way) that the judge believes that an emergency existed at the time of the accident.

This is exactly what occurred in the lower Court trial in the Lifson case, as the jury decided that Mr. Klink had been faced with a sudden emergency of sun glare in his eyes, and the jury decided that the accident was primarily the fault of Irene Lifson and to a smaller extent, the City of Syracuse. However, in a decision written by Judge Lippman, the Chief Judge of the Court of Appeals, the Court reversed the lower Court decision and remanded the Lifson case for a new trial. The rationale for the reversal was that this was not a sudden, unforeseeable emergency that Mr. Klink was confronted with. Rather, at 4:00 PM. on a February day heading westbound, Mr. Klink should have anticipated that he would be faced with sun glare, and he could have taken measures to avoid this (including wearing sunglasses, although this was not mentioned specifically in the decision).

Thus, this was a circumstance of Mr. Klink’s own creation, and not a “sudden, unforeseeable, unexpected” emergency. Judge Lippman distinguished previous cases in which the Court did find a sudden emergency, including the numerous cases involving a child suddenly darting into traffic, leaving the driver no time to react before striking the child, which would constitute a true emergency. Another example of the possible applicability of the emergency doctrine would be cases of black ice when the roads are otherwise completely clear, and the weather is not a factor at the time of the accident.

In my own trial experience, there is a huge battle between plaintiff’s attorneys and defendant’s attorneys on the emergency charge, involving memoranda of law and oral argument, which was exemplified in the original case in Lifson. The charge gives the jury the impression, despite any efforts by the presiding judge to avoid this, that the defendant was confronted with conditions and circumstances that were not of his own creation. This often leads to “defense verdicts”, in which the injured victim is left with no compensation for substantial and sometimes fatal injuries. Luckily, in Lifson, Judge Lippman rectified an unfair and unjustified result from the lower Court, and a new jury will now decide the Lifson case.

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New York Car Accidents-NHTSA Study of Seatbelt Usage

November 5, 2011 by Mark Siesel

The National Highway Traffic Safety Administration (NHTSA) recently released a study of seatbelt usage among all age groups and races around the United States. The study was conducted in June of 2009, and involved 70,493 occupants in 49,475 vehicles in 1,496 across the U.S. The study is known as the National Occupant Protection Use Survey (NOPUS), performed by NHTSA”s National Center For Statistics and Analysis, and the focus is on seat belt use, motorcycle helmet use, child restraint use with children under the age of 8, and the use of electronic devices in vehicles.

One of the most significant findings of the most recent study is that seat belt use is lowest among those 16-24 years old. In that category, seat belt usage was at 81%. Those aged 70 and above had the highest usage with 86%, only a small percentage above 25-69 year olds, who wore their seat belts 84% of the time.

Males wear their seatbelts 81% of the time, whereas females are safer at 87%. African Americans wear their seatbelts at a 79% rate, which is a significant increase over the 75% that used the seatbelts in 2008. Caucasian seat belt usage was 84% in 2009, a small increase over the 83% observed in 2008.

Seat belt usage in rear seats has been tracked in this particular study since 2004, with only 70% of passengers in rear seats wearing their seatbelts, although this is a large increase from the 47% that wore seatbelts in the rear seats in 2004. Conversely, seat belt usage overall in front seats has been very consistent, with 80% using their seatbelts in 2004, and 84% wearing their seatbelts in the front seats in 2009. There is a significant difference between rear seat belt usage if the State’s law requires it, with 78% wearing their rear seat belts if the law requires this and only 64 % wearing rear seat belts if there is no regulation in place for rear seat belts.

Children between birth and age 7 are restrained at 88%, a slight increase over 2008 at 87%. The Midwest registered a substantial increase in seat belt usage for infants, from 85% in 2008 to 90% in 2009. Overall, the west had the highest seat belt use in the country, with 95% in 2009, and the south has the lowest, at 82%.

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Fatal Crash On Taconic Results in 6 Lawsuits

July 28, 2011 by Mark Siesel

On July 26, 2009, Diane Schuler, a 36 year old wife, mother of two and aunt of three, drove southbound in the northbound lanes of the Taconic Parkway for 1.7 miles in an intoxicated condition (with a blood alcohol concentration of 0.19%, more than double the legal limit) with her 2 year old daughter, five year old son, and three nieces between the ages of 5 and 8 in the vehicle. There was a head-on collision with a car proceeding northbound driven by Guy Bastardi, with his father Michael Bastardi Sr. and family friend Daniel Longo passengers in the vehicle. With the exception of Schuler's son Bryan, who suffered serious injuries but survived the horrific accident, everyone else in both vehicles died in the fatal crash.

Two years after the crash, a spate of lawsuits have been filed by the families of the occupants of both cars, as well as by Dean and Angela Tallarico, who suffered minor injuries in a third vehicle in the accident.

In 2009, Roseanne Guzzo, the sister of Guy and daughter of Michael Bastardi, Sr., filed a wrongful death suit against the Schuler estate and Warren Hance (Diane's brother and the owner of the SUV she was driving), claiming that Schuler negligently operated the vehicle in an intoxicated condition and caused the deaths of her brother and father.

This month, with the two year wrongful death statute of limitation about to expire, five other lawsuits were filed, including:

A lawsuit by Daniel Schuler, the husband of Diane Schuler, against the State of New York, alleging that the accident was caused by negligent roadway design, maintenance, and improper signage, resulting in the death of his 2 year old daughter Erin and injuries to his surviving son Bryan;

A second lawsuit by Daniel Schuler against his brother in law Warren Hance, claiming that Hance was responsible for the accident as the owner of the minivan driven by Hance's sister Diane Schuler;

A suit by Jackie Hance, the mother of Katie, 5, Alyson, 7 and Emma 8, alleging that due to Diane Schuler's negligent and intoxicated operation of the minivan, her daughters suffered "pre-impact fear and terror, fear of impending death, extreme horror and mental anguish." This lawsuit was commenced in the Suffolk County Supreme Court.

Last, Daniel Longo's brother Joseph sued both the Schuler Estate and Warren Hance for the wrongful death of his brother. To be very blunt, both lawsuits by Daniel Schuler have a substantial likelihood of being dismissed, due to the incontrovertible fact that Diane Schuler's operation of the minivan in the wrong direction in an intoxicated condition with a blood alcohol concentration more than double the legal limit was the proximate cause (substantial factor) in causing the accident, and not improper signage, negligent design of the Taconic, or Mr. Hance's ownership of the vehicle.

It is also highly unlikely that any jury in Westchester County or Suffolk County would determine that there was anything Guy Bastardi could have done to avoid the car accident, with a vehicle coming at him between 65 and 70 miles per hour in his lane with an intoxicated driver behind the wheel. Clearly, the only reason that Mr. Bastardi was sued in the various cases was an effort by the attorneys to secure a settlement from the insurance carrier for Bastardi. In my opinion, there is no chance that that will happen. As for Warren Hance, he was sued in several of the cases simply due to his status as the owner of the minivan that his sister Diane was driving. However, it does not appear that there is any evidence that he knew that his sister was driving his minivan in an intoxicated condition, except for a brief phone call shortly before the fatal crash when Diane called him by the Tappan Zee Bridge within minutes of the accident. At that time,it apparently was too late to stop her, although it is believed he tried. Further, in my opinion, no jury in the world would find a man who lost his three daughters in the crash responsible for the accident, when he did not know his sister was going to drive drunk and high on marijuana.

As fro the other lawsuits by Jackie Hance, Roseann Guzzo, and to a lesser extent, the Tallaricos, they are all very solid cases on liability (fault). The only question will be the amount of insurance coverage available on the Hance vehicle (and any potential additional coverage under Diane Schuler's policy), which will certainly fall well short of compensating the victims of this awful accident.

Continue reading "Fatal Crash On Taconic Results in 6 Lawsuits" »

Driver in I-95 Fatal Bus Crash Hit 78 MPH

April 1, 2011 by Mark Siesel

An investigation by the National Transportation Safety Board (NTSB) has determined that the casino tour bus involved in the March 12, 2011 fatal bus accident that killed 15 passengers was traveling at speeds of up to 78 m.p.h., more than 20 miles per hour over the speed limit. Investigators also determined that despite the bus driver's claims to the contrary, there was no evidence that a tractor-trailer had come into contact with the bus, causing the driver to lose control. The tragic accident, in which the bus struck a road stanchion and split in 2, killed 15 passengers returning from a gambling trip to the Mohegan Sun Casino in Connecticut, and caused several passengers to be hospitalized for a week after the crash, four in critical condition.

Neither the federal investigators nor the New York State Police have yet to determine a cause of the accident. Possible factors include driver fatigue, as casino bus drivers frequently work long hours with little sleep. Bronx County prosecutors are also evaluating the crash to make a decision as to whether criminal charges will be filed against the driver, Ophadel Williams. It has been learned that Williams had made false statements when he obtained his commercial driver's license, including the fact that he had been incarcerated on a manslaughter charge years earlier, and was driving with a suspended license on the date of the accident.

As a result of the accident, New York Senator Chuck Schumer and Rep. Nydia Velazquez of Brooklyn have called for an examination of the safety of buses in the low-cost bus industry, which capitalizes on providing cheap transportation to casinos in Connecticut and New Jersey in order to fill their buses with passengers. One obvious and "no brainer" step would be to immediately require seat belts for all passengers, not just the driver as is presently the statutory requirement. Additionally, another measure being considered would be an interior alarm in the bus which would notify the driver if he were veering off the road or about to run into an obstacle.

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Putnam County Wrongful Death Suit Filed

February 14, 2011 by Mark Siesel

Robert Donohue, a Southeast resident whose wife and 8 year old daughter were killed by a drunk driver back on June 8, 2009, has filed a Putnam County wrongful death lawsuit against the owner of the vehicle and the property owner where the accident happened. The facts are that on June 8, 2009, Lori Donohue and her daughter Kayla were outside of Kayla's dance class at the Seven Stars School of Performing Arts in Brewster, when illegal immigrant Conses Garcia-Zacarias, who was driving while intoxicated, struck the two and killed them.

Garcia-Zacarias, illegally in the United States from Guatemala, was employed by horse trainer Valarie Renihan, a Westchester County resident, and was apparently living with several other undocumented workers employed by Renihan in a Southeast house leased by Renihan. Renihan is being sued on the basis that she permitted Garcia-Zacarias to operate her Ford F-350 pick up truck despite the fact that she knew or should have known that he was an unlicensed, illegal immigrant. Mr. Donohue is also suing Jan and Mindy Stark, the owners of the property where the accident occurred, on the theory that they knew that the dance school was close to a very busy road and had there been barricades between the parking lot and the roadway, the accident could have been prevented.

Shortly after the accident, the Town of Brewster installed concrete barriers to protect visitors as they walked to and from the dance school. Further, the Starks added columns to provide for a sheltered walkway. The allegations in the lawsuit are that the Starks should have taken these safety measures prior to the accident and were aware of the dangerous proximity of the dance school parking lot to the roadway. However, it would appear that this will be a much more difficult allegation to prove than the claims as to Mr. Garcia-Zacarias, who clearly should not have been permitted to operate a motor vehicle without a license and who was operating a motor vehicle with a blood alcohol content (BAC) of almost twice the legal limit at the time of the accident.

Garcia-Zacarias pled guilty to two counts of vehicular homicide in November of 2009 and is serving a jail term of 8 1/3 to 25 years in the Clinton Correctional Facility in Dannemora, New York. When he completes his jail sentence, Garcia-Zacarias will likely be deported to Guatemala.

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Study Shows Dramatic Increase In Texting While Driving Fatalities

September 30, 2010 by Mark Siesel

A September 23rd report from the American Journal of Public Health indicates that distracted driving fatalities have increased substantially between 2005 and 2008. The report uses data from the National Center for Statistics and Analysis's Fatality Analysis Reporting System, which revealed that fatal car crashes due to texting while driving increased 28% from 4,752 deaths in 2005 to 5,870 fatalities in 2008. This past January, the federal government banned bus and truck drivers from using handheld devices to send text messages on interstate highways.

According to Jennifer Smith, of the safety group FocusDriven, the more than 5,000 traffic fatalities annually from cell phone use is "equivalent to a major airliner going down each week in this country...if that was happening, they would ground all flights until they figured out what the problem was and they solved it." The deadly consequences of distracted driving was the main topic in a government summit the past week in Washington, D.C. Officials called for tougher enforcement against the use of handheld devices on the roadways to counteract the growing trend of fatalities due to distracted driving crashes.

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Family Of Taconic Victims Files Suit

December 11, 2009 by Mark Siesel

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.

Continue reading "Family Of Taconic Victims Files Suit" »

Third Wrong Way Driver on Westchester County Taconic Parkway

October 8, 2009 by Mark Siesel

Following the tragic Westchester County fatal car crash this past July, in which Diane Shuler killed herself and 7 others driving while intoxicated southbound in the northbound lanes of the Taconic Parkway, two other allegedly intoxicated drivers have driven the wrong way on the Taconic Parkway. First, in early September, 44 year old Bronx resident Gregorio Pena was arrested for driving two miles northbound in the southbound lanes of the Taconic in Yorktown. Pena allegedly had a blood alcohol content (BAC) of .20, more than two times the legal limit of .08 percent. Pena was charged with felony reckless endangerment and New York aggravated DWI.

On September 17, Henry M. Garcia, a nineteen year old unlicensed illegal immigrant from Guatemala, was found to have a BAC of 0.27 percent, more than three times the legal limit. Garcia was arrested after driving for six miles southbound in the northbound lanes of the Taconic, and was finally pulled over when he made a U-turn in Pleasantville. Mr. Garcia was also charged with DWI, aggravated DWI and felony reckless endangerment. His case is pending in Mount Pleasant.

Thankfully, there were no car accidents in either of the September wrong way driving arrests. However, the New York State Department of Transportation is taking action due to the open question: Why are so many drivers, (taking into account their intoxicated condition) driving the wrong way on this parkway? The State DOT will now install "Wrong Way" signs, as well as "Do Not Enter" and "One Way" signs at all exit and entrance ramps on the parkway by 2010. This measure follows federal transportation recommendations that have been in place since 2007.

Driving schools seem to concur that if someone is driving head on toward you in your lane, to avoid a serious car crash, you should try to veer off to the shoulder if possible. If there is no shoulder or this isn't possible, try to steer into the median, since hitting a fixed object is preferable to a head on collision.

Continue reading "Third Wrong Way Driver on Westchester County Taconic Parkway" »

Westchester County Fatal Accident--Was It Unavoidable?

August 6, 2009 by Mark Siesel

In the wake of the horrific Westchester fatal car crash which killed 36 year old Diane Schuler, her 2 year old daughter, three young nieces, and three men on their way to a Sunday lunch with family, there is this question: Was this terrible tragedy avoidable? We have all heard the main facts by now--A 36 year old woman with her infant daughter, young son, and three young nieces in her minivan, on her way home from a weekend camping trip in Sullivan County, drives the wrong way on the Taconic Parkway for almost two miles, and collides head on with a Chevy Trailblazer occupied by Michael Bastardi, his son Guy Bastardi, and family friend Daniel Longo. All except Schuler's five year old son Bryan were killed in the crash, and we now learn that at the time of the accident, Ms. Schuler had a blood alcohol content of .19, (which is almost triple the legal limit of .08), six grams of alcohol in her stomach, and high levels of THC from smoking marijuana within one hour of the Westchester County car crash.

There have been numerous accounts of other drivers seeing Ms. Schuler driving erratically on Routes 17 and 87, weaving in and out of lanes, tailgating and driving across grassy medians. There were several reports that once on the Taconic Parkway northbound (in what Schuler apparently believed was the right lane of the parkway southbound), drivers were beeping their horns, flashing their headlights, and calling 911, all to no avail. It is particularly tragic that with the usual police presence on each of these roadways, (especially on Route 17 and the Taconic), that Ms. Schuler was never stopped and arrested for DWI.

But there is another issue to address here for each of us. If confronted with a car proceeding toward you the wrong way on a high speed roadway, what would you do? Let's start out with some basic estimates and facts. Assuming that the Schuler and Bastardi vehicles were each traveling at approximately 60 miles per hour, that means that the vehicles were moving toward each other at approximately 175 feet per second--120 m.p.h @1.467 feet per second. There is a wide variance in brake reaction time statistically, but generally speaking, the range is between 1.5 seconds and 3 seconds. Then there is what is known as brake engagement distance, (how long it takes the brakes to begin slowing the car once the foot depresses the pedal), which some studies have indicated is about 0.3 seconds. Adding on what is known as physical force distance-- how far the vehicle would continue to travel before it stopped, at least another 150 feet would be needed for each vehicle to come to a stop.

Continue reading "Westchester County Fatal Accident--Was It Unavoidable?" »

New York Car Accidents--Cellphones Dangerous Even With Handsfree Devices

July 24, 2009 by Mark Siesel

We all have witnessed drivers on the highway applying makeup, shaving, looking at maps or other reading materials, and focusing on everything but the road. But in an eye-opening series in the New York Times entitled "Driven to Distraction", studies have apparently shown that drivers using cellphones are four times as likely to cause a crash as other drivers, and their likelihood of causing a car crash is equal to that of someone who is intoxicated with a blood alcohol of .08! Worse yet, for those of us who feel that we've reduced the risk of distracted driving by using hands free devices, this can actually increase the risks by making us believe that the behavior is safe.

A 2003 study done at Harvard University estimated that distracted driving caused by cellphone usage resulted in an annual 2,600 fatalities and 330,000 accidents with moderate or severe injuries. A particularly compelling story mentioned in the series is that of Christopher Hill, a 20 year old Oklahoma resident, who was so involved in a call while driving that he ran a red light and broadsided a car driven by Linda Doyle, who died at the scene. When the investigating officer asked Mr. Hill what color the light was, he responded that he hadn't even seen the traffic light at all. New York is one of only 5 states around the United States that ban hand-held cellphones while driving, but no state legislature has banned talking on a cellphone while driving. It is clear that the cellphone carriers, including Verizon Wireless, Sprint, AT & T and T-Mobile are a very strong lobby in Washington, and banning all cellphone usage in cars, even with hand-held devices, is a political "non-starter."

According to a study by the Governors Highway Association, 8 states in the U.S. ban cellphone use for novice drivers and 4 states do so for bus drivers, with 13 states banning cellphones for novices and bus drivers. 14 states ban texting for all drivers and 9 ban texting for novices only. The New York Legislature has sent a bill to Governor Paterson to ban texting while driving, (we will write about this in a separate post) which he is expected to sign and would go into effect on November 1, 2009.

As part of Mr. Hill's sentence for his Oklahoma misdemeanor conviction in the death of Linda Doyle, he must perform 240 hours of community service discussing the risks of distracted driving and speaking to classrooms of students about "talking on a cellphone and killing someone." Cars over the last few years are often equipped with navigation systems with voice commands, which allow drivers to keep their focus on the road rather than viewing a screen. However, with the advance in technology giving us audio, video, GPS, the Internet and give and take with voice commands, it is clear that the safety issues of distracted driving are not going away any time soon.

Continue reading "New York Car Accidents--Cellphones Dangerous Even With Handsfree Devices" »

After NY Car Crash, Be Wary Of Insurance Company Calls

July 3, 2009 by Mark Siesel

When you have been injured in a New York car crash, you will be contacted by two insurance companies--your own, and the carrier for the car that hit you. As will be described below, the simple rule is: cooperate with your insurance company, and hang up on the other driver's representative. In New York, your medical, hospital, and miscellaneous bills and expenses are paid through your own No-Fault insurance coverage. Therefore, you must cooperate in every way with your own insurance company to ensure that your bills are paid, lost wages compensated, and other expenses such as property damage are paid for.

However, soon after the New York car accident, you will invariably hear from the other driver's insurance representative. Under the guise of simply "wanting to know how you are doing", this insurance representative will request that you provide a written or recorded statement regarding the accident, and what measures you took to avoid the accident. YOU MUST NOT COOPERATE. Remember that these insurance adjusters are trained to ask you leading, misleading or confusing questions with the goal of attributing some or all of the fault of the accident to you. Their hope is to obtain a damaging statement from you before you have had the opportunity to speak with a lawyer who would obviously advise you against providing the other driver's insurance company with anything. Sometimes, these adjusters will attempt to visit you with a release and small settlement check in hand, to try to get a settlement before you have met with a lawyer. Bottom line--when the other company calls, tell them you are meeting with your attorney, and hang up the phone. Don't say anything, don't write anything, and whatever you do, DO NOT SIGN ANYTHING.

If you or a loved one is injured in a car accident, or any other type of accident, contact the personal injury lawyers at The Law Office Of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced, aggressive and knowledgeable advocate who will fight to obtain the maximum possible compensation for your injuries.

New York Drivers Score Lowest On Written Driving Test

June 3, 2009 by Mark Siesel

In a national written driving test sponsored by GMAC Insurance, New York drivers scored lower than any other state in the nation this year, according to the company. New Jersey drivers scored the lowest last year. The test consists of 20 questions about driving rules that are uniform across the U.S. New York drivers averaged 70.5%, passing the test, but barely. Conversely, Idaho and Wisconsin drivers tied for first place with average scores of 80.6%.

However, a spokesman for the Department of Motor Vehicles, NYDMV noted that there are substantially fewer fatal car accidents in New York per capita than in Idaho or Wisconsin, where drivers scored the best on the written driving tests. The New York DMV suggests that drivers go to the DMV website for information on defensive driving classes which can reduce points on your license and lower insurance payments.

To try out the written test yourself, go to the GMAC test page. For the record, I took the test and got an 80%, meaning that I missed 4 questions out of the 20. I must say that I was surprised to learn that you are permitted to pass on the right (obviously, everybody does it but I did not know it was legal) when traveling on a multi-lane highway carrying two or more lanes of traffic in the same direction--just shows that you can always learn something new!

Continue reading "New York Drivers Score Lowest On Written Driving Test" »

New York Car Accidents--Distracted Driving A Serious Problem

December 26, 2008 by Mark Siesel

According to a study by the Network of Employers For Traffic Safety, distracted driving is a factor in 25% to 30% of all car accidents, or 4,000 car crashes every day. As hard as it is to believe, drivers make an average of 200 decisions for every mile traveled, making it all the more critical that your attention is on the road, not on that important meeting you are heading to or a cell phone call you need to make in the car. The same study found that distracted drivers fail to recognize potential safety hazards on the road and react more slowly to traffic conditions, decreasing their margin of safety.

To know if you are driving distracted, take the following test: Have you ever slammed on your brakes because you didn't see the car in front of you stop? Run a stop sign unintentionally? Forgot entirely that you drove from one place to another? If so, you have been "driving while distracted."

The study identified the percentages of distracting activities that drivers engage in: 96% talk to their passengers; 89% adjust vehicle climate and radio controls; 74% eat a meal or snack; 51% use a cell phone; 41% tend to children; 34% read a map; and 19% groom themselves for work.

It is certainly a given that you will be speaking with your children in the car, but I have seen people shaving, putting on makeup, reading a map, making a cell phone call with no hands on the wheel, adjusting their radio, and turning around to speak with their passengers on many occasions, and have had to avert numerous wayward drivers due to these activities.

The best advice is to eat that snack, make that call, comb your hair and get your directions before getting in the car, so we can all be safer on the roads!

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New York Car Accidents--The Five Most Dangerous Holidays To Drive

November 25, 2008 by Mark Siesel

According to data from the National Highway Traffic Safety Administration, in which NHTSA reported on motor vehicle deaths from 2001 through 2006, there are five holidays that drivers should try to steer clear of, if at all possible. The fifth most dangerous holiday is New Year's Day, (which surprised this writer--I would have thought it would be the most dangerous with the amount of alcohol consumed and volume of drivers on the roadways) with an average of 421 vehicular deaths. The fourth most dangerous holiday is Labor Day weekend, especially as a result of overcrowded roads and out of town travel. There was an average of 488 deaths for the 6 year period of the study. Number 3, with an average of 493 deaths, is Memorial Day Weekend, with coastal roads overcrowded with 38 million people on the roads, according to AAA statistics.

The second most lethal holiday for drivers is Independence Day, with average motorist deaths at 505. It is estimated that 53% of July 4th crashes involve at least one drunk driver. The most dangerous holiday of all? That would be Thanksgiving, with too much wine at dinner, perhaps, and possibly extra exhaustion from an over indulgence in rich foods--this holiday averaged 573 vehicular deaths over the last 6 years, and in 2006, there were 623 traffic fatalities. So please be extra careful this Thanksgiving!

If you, a family member or relative are injured in a car accident or any other type of accident, contact The Law Office Of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced, aggressive attorney who will fight to get you the maximum compensation for your pain and suffering, lost earnings and loss of quality of life.

New York City Councilman Seeking Ban On Text Messaging Drivers

September 2, 2008 by Mark Siesel

New York City Councilman David Weprin has introduced a bill which would ban the sending or reading of text messages while driving within New York City. As the Queens Democrat stated: You're not looking at the road and you don't have both hands on the wheel when driving while text messaging... the probability for auto accidents is too high to ignore." The bill will be modeled after New York State's ban on the use of cellphones while driving, which imposes a $100.00 fine for this violation of the New York Vehicle & Traffic Law.

The proposal was prompted by the tragic fatal car crash in New York's Finger Lakes region last summer when 5 teenage girls riding in an SUV died. The accident investigation revealed that the driver was sending a text message when she swerved into oncoming traffic and the vehicle collided with a tractor-trailer.

There are only four states that currently ban texting while driving, according to the Governors Highway Safety Association--Alaska, Minnesota, New Jersey and Washington. Legislation to do the same is under consideration in 16 other states, according to Mr. Weprin's staff. Based on a 2006 study by Nationwide Insurance, 19% of drivers text message at the wheel, including a whopping 37% of drivers between the ages of 18 and 27.

If you are injured in a New York automobile accident, contact the Law Office of Mark A. Siesel online or at 888-761-7633 for a free consultation with an experienced, knowledgeable attorney to analyze your case and discuss your legal rights and options.

Study Shows That More Than 60% Have Pain 1 Year After Accident

March 21, 2008 by Mark Siesel

The Journal Archives of Surgery published a study on March 17th which found that a year after an injury in a car accident, slip and fall or other types of accidents, 63 percent reported that they still had substantial pain related to the injury. The over 3,000 patients studied were 18 to 84 years of age, who had survived a traumatic injury.

The people in the study suffered head injuries, broken limbs, chest or abdominal trauma and other injuries in motor vehicle crashes, slip/trip and fall accidents and other circumstances. The most common areas of pain were in the joints and limbs (44 %), the back (26 %), the head (12 %), and the neck (7 %).

The American Pain Foundation, a Baltimore-based advocacy group, said the financial cost of chronic pain in the United States, including lost income, health care expenses and lost productivity in the workplace, is estimated to be $100 billion per year. According to this foundation, back pain is the leading cause of disability in Americans under 45 years old.

In our practice, we are frequently battling with insurance companies in New York car accidents who want to cut our clients off from No-Fault benefits based on a negative MRI despite the fact that it is abundantly clear that the client is still in significant pain--without any objective proof of this pain such as positive X-rays, CAT Scans, or MRI's. In these situations, our recommendation to our clients is simple: you must continue to treat with your chiropractor, physical therapist, physiatrist, or acupuncturist, in order to alleviate the pain and establish the evidence necessary to meet the "No-Fault Threshold"--the requirement in order to recover compensation for injuries in a New York car accident.

New York City Car Crash Kills Woman Who Survived 9/11

January 28, 2008 by Mark Siesel

Florence Cioffi, a woman who survived 9/11 and was just days from her 60th birthday, was killed in a New York City car accident on January 24 when she was run over by a vehicle driven by computer software executive George Anderson just before 11:00 PM on Water Street in Manhattan. Mr. Anderson kept driving, but returned to the scene a short time later, where he was observed by police officers to have bloodshot eyes, smell of alcohol, and have slurred speech. Mr. Anderson refused a police request to take a breathalyzer test. Police immediately administered a blood alcohol test; the results have not been announced yet.

Continue reading "New York City Car Crash Kills Woman Who Survived 9/11" »

New York car accidents caused by GPS devices

January 24, 2008 by Mark Siesel

Global positoning devices (GPS), although a lifesaver to some, have been blamed for numerous New York car accidents over the last few years. Most recently, earlier this month, a driver from California caused a fiery car accident when he turned on to railroad tracks in Bedford Hills and his vehicle was struck by an oncoming train when the car became stuck on the tracks.

The driver, a 32 year old who works for a SIlicon Valley tech company, claims that the GPS device in his vehicle instructed him to turn right onto the train tracks leading to the January 4 New York motor vehicle accident with the oncoming train. The driver exited the vehicle before the accident and was not injured.

Since 2005, according to Dan Brucker of Metro-North railroad, a growing number of out of state drivers have informed police that they were following GPS devices instead of paying attention to signs at parkway entrances. A spokeman for Garmin, the largest GPS seller in North America, indicated that 15% of cars are now equipped with the GPS devices.

Investigators caution that following the rules of the road, and obeying rodway signs, always takes precedence over GPS devices, which can be quiet distracting with their illuminated maps and authoritative voice commands.

Westchester County Car Accidents Caused By Aggressive And Inattentive Drivers

December 17, 2007 by Mark Siesel

2007 continued a trend of numerous New York car accidents on suburban New York roadways dominated by aggressive, inattentive drivers causing numerous car accidents and fatalities. According to Captain John Hodges of the Westchester County Police, the main causes of these New York car crashes and auto deaths are: speeding, driving while intoxicated, following too closely, taking curves too fast and weaving in and out of traffic.

New York car accidents are also being caused by inattentive drivers who are speaking on cell phones, adjusting their global positioning devices, and listening to their IPods with earphones. Additionally, a new and shocking trend that has been observed by motorists and police patrols alike is young drivers text messaging while driving!

Fatal accidents in New York rose from 2005 to 2006 in the counties of Westchester, Rockland and Putnam. Statistics are not yet available for 2007. DWI arrests on Westchester County roadways increased from 470 to 494 in 2007 due to more aggressive enforcement, according to Capt. Hodges.

Continue reading "Westchester County Car Accidents Caused By Aggressive And Inattentive Drivers" »

Another Fatal Accident on the New York Bronx River Parkway

November 29, 2007 by Mark Siesel

November 2007 has been a treacherous month on the Bronx River Parkway in New York. On November 13, 2007, we did a report "Fatal Accident on the Bronx River Parkway..." describing the New York fatal car crash in which a Yonkers couple, Bernard and Phyllis Cecere, was killed when their vehicle was struck by an apparently speeding car driven by 19 year old Justin Martinez near Oak Street in Yonkers.

On November 26, 2007, an Orange County man was killed and a Peekskill woman seriously injured in a nearly head on collision on the Bronx River Parkway just north of the Virginia Road exit. On a curvy section of the roadway heading southbound, Dawn Young was driving a 2004 Jeep Liberty when she apparently crossed the double yellow line, colliding with a 2005 Mazda being driven by Gerald Wolfe, who died from his injuries at Westchester Medical Center. Ms. Young's injuries are not considered life threatening. This was second fatal accident in the exact same location of the Parkway; back in October of 1999, three people were killed when a carjacking suspect at the wheel of a stolen Cadillac veered onto the southbound side of the Parkway near Virginia Road and struck the vehicle of a Chappaqua couple on their way home from church. Ironically, after several years of delay due to federal government regulations requiring the installation of storm water basins, construction work was scheduled to begin the same day of the most recent fatal car crash to install center barriers from Cemetery Road at exit 23 to Lafayette Avenue at Exit 27. However, work was delayed due to the inclement weather conditions.

The Westchester County Police have indicated that it is too early to determine if alcohol, drugs, the poor weather conditions, or slippery roads were factors in the fatal car accident.

Continue reading "Another Fatal Accident on the New York Bronx River Parkway" »

Britney Spears Latest Example of Dangerous Driving Throughout United States

November 15, 2007 by Mark Siesel

Britney Spears latest run in with the law in which she went through a red light and made an illegal left turn with her children in the car highlights two significant safety issues, one of which we wrote about in our April 8, 2007 blog. Namely, New York mothers driving while intoxicated with their children in the car. A video taken by videographers shows Ms. Spears going through a red light at a well known dangerous intersection in Los Angeles with her two young sons sleeping in the back and her court-appointed monitor in the front. Although on this occasion, Ms. Spears has not been charged with intoxication as part of her traffic offenses, her troubles with drugs, alcohol and vehicles are well documented.

The other issue is New York drivers disregarding traffic signals and routinely going through stop signs and red lights. More and more in this age of people in a hurry to get to their next destination, drivers treat traffic signals like inconvenient nuisances rather than part of the New York Vehicle & Traffic Law. For example, our office in White Plains is one block east of the intersection of Mamaroneck Avenue and Post Road. This intersection has a huge no left turn sign above the traffic lights, which drivers seemingly disregard at will, despite the fact that the intersection has been the site of multiple accidents over the years, and the frequent police presence from the City of White Plains Police Department.

Fatal Accident On New York Bronx River Parkway Results In Calls for Stricter Traffic Enforcement

November 13, 2007 by Mark Siesel

The fatal car crash on New York's Bronx River Parkway this past Wednesday has Westchester residents calling for stricter traffic enforcement. An elderly Yonkers couple, Ralph and Phyllis Cecere, were killed in the horrific car accident car crash when a Honda driven by 18 year old Justin Martinez collided with their Cadillac, which then burst into flames. According to the Journal News, a witness observed Martinez weaving in and out of traffic, driving on the shoulder of the roadway, and driving at an excessive rate of speed.

In response to numerous calls by Westchester County residents for increased traffic enforcement, the Westchester County Police Department has outlined the steps they are taking to curb aggressive driving, reckless driving, and reduce auto accidents. These steps include the following: aggressive driving details, in "low profile", unmarked vehicles; spot speed enforcement checks; radar screens to inform drivers of their speed; and the placement of unmanned patrol cars, called "drones", to cause drivers to slow down in the belief that the cars do have officers inside them.

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New York Driver Auto Crash Analysis

October 23, 2007 by Mark Siesel

According to a study by the Rand Corporation, drivers over the age of 65 are two-thirds less likely to be in a car accident than drivers between the ages of 18-25. Further, the oldest drivers are only 16% more likely to be in an automobile accident than drivers between the ages of 26-64, which was a much smaller difference than is commonly believed.

Though older drivers have slower reflexes and deteriorating skills that woudl certainly make them more likely to be in a car accident, they compensate by avoiding riskier driving conditions, and many stop driving when their skills and senses become too impaired. However, older drivers are much more likely to die in an automobile accident than younger drivers, because they are frailer.

Speeding Drivers on New York's Tappan Zee Bridge

August 24, 2007 by Mark Siesel

The fatal auto accident this past July involving a truck driver and a speeding motorist have brought on renewed calls for stronger traffic enforcement on the New York Tappan Zee Bridge. According to the police investigation, the driver of a 1995 Mitsubishi was driving recklessly and struck the rear of a tractor trailer driven by Ricardo Riveros. The impact of the accident caused the truck to swerve across several lanes of travel, break through 270 feet of concrete barrier before flipping over and exploding into flames on the other side of the bridge, killing Mr. Riveros. This tragic accident has resulted in calls for more traffic enforcement on the Westchester County and Rockland County sides of the bridge, as well as the installation of cameras which could track the rate of speeding drivers.

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Insurance Institute Analyzes Vehicle Death Rates

May 22, 2007 by Mark Siesel

The Insurance Institute for Highway Safety analyzed the highest and lowest death rates for motor vehicles between 2002 and 2005. Interestingly, General Motors manufactured the automobile with the highest death rate as well as the vehicle with the lowest death rate, measured by driver deaths per million registered vehicles during the four-year span. The Chevy Blazer had the highest of any vehicle, with 232 driver deaths per million registered vehicles, followed by the Acura RSX with 202 driver deaths. The next highest death rate was found in the Nissan 350Z, with 193 deaths. The analysis was performed by dividing the reported number of driver deaths by the model's number of registered years.

The lowest number of deaths was recorded by the Chevrolet Astro minivan, with only seven deaths per million registered vehicles. This was followed by the Infiniti G35, BMW 7 Series and the Toyota 4Runner.

In a strange twist, General Motors no longer manufactures either the Chevy Blazer or the Astro.
There is certainly an open question as to other variables not considered by the Insurance Institute, including the age and gender of the of the drivers involved.. Further, statistically speaking, it is likely that a driver of a Chevy Astro minivan is more likely to be, for example, a mom with children in the car, and much more likely to avoid risk taking behavior than the driver of a Chevy Blazer. It is hard to fathom that a Chevrolet Blazer is over thirty times safer than the Astro.

Without question, the drivers of heavier vehicles such as SUV's and pickups are going to have lower death rates, even taking into consideration the driver profiles involved. With the cost of gasoline skyrocketing, automobile manufacturers are likely to make smaller vehicles in the future to improve gas mileage and make them more affordable to drive. However, based on the statistics of this study, it is an unfortunate fact that the smaller the vehicle, the more likely that there will be a commensurate rise in automobile death rates.

The Most Dangerous Section of the New York State Thruway

May 14, 2007 by Mark Siesel

In the last decade, the stretch of the New York State Thruway between exits 15 A and 16, a section of roadway approximately 13 miles in length, has claimed the lives of 25 people, the last three in March of this year. The irony is that the thruway in this area between Sloatsburg and Harriman, New York, which this writer travels regularly, is a pleasant, mostly straight and altogether unremarkable section of highway, looking every bit the prototypical interstate designed to take drivers quickly and safely from city to city.

After considerable analysis, state troopers and transportation officials cannot seem to find anything wrong with the roadway. “They are basically flukes,” said Sgt. James A. Whittel of the New York State Police, referring to the long string of deadly crashes. “It’s usually that the driver did something bizarre that causes the accident.”

In a March 17, 2006 automobile accident, on March 17, 2006, the driver of a minivan stopped in the middle of the right traffic lane to check a tire. A tractor-trailer slammed into the van, killing four people, including three children. It was the third of four crashes between Feb. 7, 2006, and June 18, 2006, that killed 10 people.

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