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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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When you have been injured in a New York car crash, or slip and fall accident, fallen off a ladder or scaffold on a construction site, or been the victim of a dangerous product or medication, it is vital that you document your accident and injuries. Previously, we have written about the importance of reporting your accident and obtaining a copy of the accident report from the owner of the premises. We discussed getting the names, addresses, and phone numbers of witnesses. In prior blogs, we also stressed the importance of taking photographs, for example, of the defective sidewalk or step; the damage to your car before it is totaled or repaired; the dog that bit you, and of course, your injuries from the accident.

Another excellent type of documentation is to maintain a diary of the following: the hospital and medical treatment you underwent; the type of pain you experience on a daily basis, and what activities bring the pain on or exacerbate your suffering; your inability to perform activities of daily living due to your injuries (and identifying the people who must do these activities instead regarding household chores or maintenance); and how the accident has affected your enjoyment of life. This is instrumental when you must give testimony at a deposition or trial (often months or a couple of years after the events) as to treatment, pain and disability, and the toll the accident has taken on your life. These are the most important elements a jury will consider when deciding how much to award for your damages, so keeping a diary is a very smart way to improve your chances of a successful outcome at trial or a more substantial settlement before trial.

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On November 1, 2009, New York’s statewide ban on texting while driving goes into effect. The law was designed to prevent or reduce serious New York car crashes such as the tragic accident last year in which several young teens lost their lives when the driver lost control and struck a tractor trailer while texting. However, what makes little sense is that the law as presently written does not permit the police to issue a ticket for the violation unless the operator is guilty of another moving violation, such as speeding or an unsafe lane change. Thus, as long as the texting driver doesn’t speed, go through a red light, or switch lanes suddenly, they will not be issued a summons. Obviously, the New York State Legislature either did not think this law through very thoroughly, or the texting lobby has done a very good job of taking some bite out of the bill.

The fine for a violation of the new law is $150.00. Graham Parker, a spokesman for the New York State Senate Transportation Committee, claims that the “Legislature will keep in touch with law enforcement agencies after the law takes effect and can change it if needed.” Nonetheless, if the purpose of the law was to deter distracted driving and prevent New York fatal car accidents or serious injuries, I personally do not see how this toothless law will do much to accomplish that goal. Distracted driving has become such a serious issue that Ray LaHood, the U.S. Transportation Secretary, has announced that there will be a “distracted driver” summit in Washington on September 30th and October 1st to review the problem.

Local police departments have become more skilled at detecting drivers who are texting while driving, despite the fact that many will hold their phone below dashboard level. Methods include using vehicles that give them the ability to look down into nearby cars to identify texting drivers, stationing a plainclothes officer at a location where he can look down into cars slowing for traffic and then notify a cruiser up ahead, or simply watching body language and eyes looking down rather than straight ahead.

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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.

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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.

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Last week, a federal advisory panel of the Food & Drug Administration (FDA) voted 20-17 to recommend a ban of Percocet and Vicodin, two very popular painkillers, due to their damaging effects on the liver. Percocet, also known as Oxycodone, and Vicodin, another name for Hydrocodone, are controlled substances due to their addictive nature, and combine a narcotic with high dosages of acetaminophen, a painkiller found in such medications as Excedrin, Tylenol and Nyquil.

Acetaminophen is combined with different narcotics in at least 7 other prescription drugs, and each of these drugs would be banned if the FDA takes the advice of its panel. Vicodin is prescribed more than 100 million times per year in the United States, according to the study, and patients who take these potentially dangerous drugs often need progressively larger doses to obtain the same pain relief.

In 2005, Americans bought 28 billion doses of products containing acetaminophen. Although it is effective in treating headaches and reducing fevers, even recommended doses can cause liver damage. More than 400 people die and 42,000 are hospitalized in the U.S. every year from overdoses according to the panel. One panel member, an associate professor of medicine from Duke University Medical Center, noted that: “We’re here because there are inadvertent overdoses [of acetaminophen] which are fatal, and this is our opportunity to have a big impact.”

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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.

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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!

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When you are injured in a New York car crash, here are ten things that you should do:

1. Make sure to call the police. The other driver may ask you to “work it out between us”, but that is always a bad idea, and will certainly hurt your prospects for a settlement with the other driver’s insurance company if the accident was not reported.

2. Report all injuries to the investigating officer. Frequently, new clients come to our White Plains, New York office with a police report which states that “no injuries” were reported by either driver in the car accident. Insurance companies always refer to this in settlement negotiations, so don’t let this happen to you.

3. Go to the hospital immediately and make sure that all of your injuries are noted by the triage nurse at the hospital.

4. If at all possible, get the names, addresses and phone numbers of any witnesses. Once you are taken for medical treatment, this information is very often lost forever and this can be absolutely vital to the success of your case.

5. Document the accident scene, the location of the vehicles, accident debris, the damage to your car, and any visible injuries with photographs. If you don’t have a camera, use your cell phone if you can. This cannot be emphasized enough.

6. Treat immediately for your injuries to avoid insurance company claims that your injuries were not from the New York car accident.

7. Don’t speak with the other driver’s insurance company, and don’t sign any papers or fill out any reports for the other insurance company.

8. Obtain the police report right away and if the other driver hasn’t reported the accident, you or your lawyer must do so right away to preserve your rights.

9. Make sure you report the accident to your own insurance company to ensure that your no-fault coverage, which will pay for your medical treatment and lost wages, is immediately in effect.

10. Contact a New York personal injury lawyer immediately to represent you throughout the process, which is designed with many filing deadlines which must be met to protect your legal rights and insurance coverage.

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The family of the late Jon-Kely Cassara, a seven year old boy who died on the Ye Old Mill ride at Playland Park on August 3, 2005, settled this New York dangerous premises case for $1.25 million on March 23, 2009. The Westchester fatal accident occurred when Jon-Kely got out of his boat and fell in a dark tunnel, apparently getting stuck under the ride apparatus and drowning. The settlement offer was made by Westchester County after the devastating testimony of former Playland director Joseph Montalto, the first and only witness to testify. Montalto testified that he would not have allowed Jon-Kely on the ride if he had known that there were insufficiently trained workers on the ride that day.

The settlement must be approved by the Westchester County Board of Legislators, which was scheduled to vote on the settlement this week. It is expected that the Board will vote to approve the settlement; if not, the case would have to be retried, with the seven year old victim’s family and lawyer determined to obtain a verdict on the heels of that vital testimony by Mr. Montalto.

Jon-Kely’s death was the third at Rye Playland in the last five years. On May 22, 2004, 7 year old Stephanie Dieudonne, was thrown from the Mind Scrambler ride and killed. Three years later, 21 year old park employee Gabriela Garin was also killed on the Mind Scrambler, which has since been removed from the park.

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