Articles Posted in Car Accidents in New York

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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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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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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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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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.

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

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

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

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

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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.

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