Oakland Personal Injury Lawyer Blog

When I was in high school, I remember there was a clock over the door in our Latin Class. Beneath it was the inscription, "Time will pass. Will you?" I always get a chuckle when I think of it. In the legal world, when time passes so can your rights to sue if you do not take timely action.

The laws governing when a suit must be filed are called statutes of limitations. A statute of limitations is the limited amount of time one has to file a lawsuit for a claim. The time periods for different type claims will vary. Statutes of limitations may be as short as six months, or as long as four years or more years, depending on the type of claim that you have.

General Statute of Limitations for Personal Injury Claims

This article will discuss in general terms, the statutes of limitations as they pertain to personal injury claims. For a typical personal injury claim, such as an automobile accident, slip and fall, dog bite, or product liability claim, the statute of limitations is two years. This does not include claims against governments, hospitals, or other public entities, where a shorter time period applies (See my article on filing claims against public agencies), nor does it apply to medical malpractice/negligence cases. This means that a lawsuit must be filed within two years of the date of your injury occurring or your claim will be barred by law (Code of Civil Procedure 335.1).

Exceptions

While normally a personal injury lawsuit or suit for wrongful death must be filed within two years of the date of the injury or death, there are numerous exceptions which may extend the statute. The legal term for this is the "tolling" of the statute.

Discoverability Rule

A claim does not originate legally until someone has knowledge of the negligent act which causes their harm. The "discovery rule" postpones the accrual of a cause of action until the injured party discovers or has reason to discover the cause of action. For the purposes of this rule, the plaintiff discovers the cause of action when he or she at least suspects a factual basis for the claim. Simply put, the injured party need not know there is a legal basis for the claim, but rather suspects that someone has done something wrong to him. An example of this would be where someone has been exposed to a toxic material, but did learn that his medical problem was related to the previous exposure until a much later time. This was the cases for thousands of shipyard workers who worked around asbestos products. They did not learn of the dangers of asbestos for thirty to forty years after exposure to the toxic material. Due to the discovery rule, however, these workers did not lose their rights to sue the asbestos manufacturers. More recently in the news, there have been reports related to the Gulf Oil Spill, that clean up crew workers are experiencing a variety of late developing health problems associated with the dispersant Corexit.

Incapacity

If someone is incapacitated, the statute of limitations is tolled for the time period of the incapacity. Incapacity generally means that a person is incapable of caring for his or her property or transacting business, or understanding the nature or effects of his or her acts. This may come up in the case of an elderly person who suffers from dementia, or where someone has a severe injury which affects their cognitive abilities.

Minority

The statue of limitations does not start running for a minor until he turns age 18. Therefore, generally speaking a minor has until age 20 to file a general personal injury lawsuit, before the claim is barred by the statute of limitations.

Conclusion

Different type cases will have different statutes. As an Alameda personal injury attorney, I understand the complexity of the statute of limitations for different type claims. As mentioned earlier, claims against public agencies, and governmental entities have their own unique claim system. Medical malpractice action also have their own statutes of limitations. Therefore, it is alway the best practice to consult an attorney as soon as you suspect that an injury has been caused by someone else. However, if a substantial period of time has lapsed since the initial accrual of the claim, then it is extremely important to investigate whether any tolling provisions in the code apply to your claim.

If you have been injured in a car accident in California, and the accident was the other driver's fault, you are entitled to recover for the medical bills you incurred as part of your personal injury lawsuit. This seems simple enough. And for many years, this was a simple question. But determining the amount of the medical bill that the other driver is responsible for has become a complicated question due to numerous court decisions which have come down in the recent past.

The law for many years held that a person could recover for the reasonable amount of his medical bills which were related to injuries he received in his car accident. The reasonableness of the bills was generally determined by looking at the face amount of the bill that was received from the doctor, hospital or other health care provider.

Now, however, the reasonableness of the bill is no longer determined by face amount of the bill. One has to see how the bill was paid, whether there was health insurance, whether there were any write off's, whether there was workers compensation coverage, who was responsible for paying the bills, and whether there is a right to any so-called balance billing.

Amount recoverable when injured person is uninsured:

So here's how you figure the medical bills out if you have been in an auto accident. If you have no health insurance, the reasonable amount of the bill, and the amount you are entitled to recover is based on what the health care provider accepts as payment in full. Hospitals will generally accept a reduced amount from the face amount of the bill itself if a person is uninsured. Doctors and ambulance companies will also often reduce their bill if there is no health insurance. However, they may seek payment of the full amount of the bill if you have a personal injury claim pending.

Amount recoverable when injured person has health insurance:

If you are covered by health insurance or workers compensation coverage, the medical bills will often be paid at pennies on the dollar. How much the doctor or hospital reduces their bill depends upon their contract with the health insurance company. So for example, a medical bill for an emergency room visit following a car crash might be $5,000.00, but due to the contract between the hospital and the health insurer, the hospital might only receive $1,000.00 in full payment of the bill. Last year, our California Supreme court, in the case of Howell v Hamilton Meats decided that generally speaking, the injured person can only recover the amount that the medical provider actually accepted as full payment for the bill. So in this example, the injured person would only be able to recover $1,000.00.

Amount recoverable when workers compensation pays the bills:

This same principle was applied in a case this year which involved workers compensation payments. In the case of Sanchez v Brooke, the court had to decide whether the Howell rule of law also applied in a workers compensation setting. The court followed Howell and held that the injured person could only recover the amount that the workers compensation carrier had actually paid the medical providers, not the amount that was billed.

Balance billing and your rights to recover:

On some occasions, the hospital or doctor may not have to accept the payment from the health insurance carrier as payment in full. This is known as balance billing. If that is the case, the injured person is responsible for paying the balance. In these instances, the person would be able to recover the entire amount which was paid to the hospital by the health insurer, plus the amount that the individual is responsible for paying.

As you can see, what was once a simple calculation has become a complicated scenario. Furthermore, all of the above are subject to negotiation and ever changing laws. Knowing which law to apply, and how best to argue the facts surrounding each case can have a tremendous impact on the recovery to the client. As an Alameda personal injury lawyer, I am constantly working with people injured in accidents and helping them get their medical bills paid. Negotiating with medical providers such as hospitals, doctors, ambulance companies, and health insurers to maximize the amount my clients recover is an integral part of my law practice.

If you watch television, you can't help but see a lot of commercials. In recent years the insurance industry has stepped up their game in this area. Their commercials have become quite entertaining. I am not endorsing any one company over the other as an insurer however I do like to compare their commercials. I have to say I do love "mayhem" for Allstate. Actor Dean Winters does a great job as a teenage girl in a pink truck, a guard dog while your house is being burglarized and most recently snow on your roof. The people in the Midwest must really appreciate that one these days. Flo, the Progressive lady played by Stephanie Courtney is most annoying. She must be selling policies though because she has been on the air for a long time.

One of the most recent commercials for Farmers Insurance peeked my interest. It is the one featuring actor J.K. Simmons as Professor Nathaniel Burke. He is leading a group of new adjusters through the University of Farmers, each scene pointing out potential hazards that require insurance coverage. I was surprised to learn that they actually call their training center the University of Farmers! In one of the scenes Professor Burke states that one in seven drivers is uninsured. That must be a national figure because I have seen estimates that close to 25% of California drivers are uninsured. That is a scary statistic.

What's even scarier is how this might affect you if you have been involved in an accident with an uninsured driver and suffered personal injuries. There are a couple of ways this can play out.

Scenario #1: You are injured in a car accident, the other driver is uninsured and at fault but you have uninsured motorist coverage on your own policy. In this case an uninsured motorist claim can be made against your own policy. As an Oakland personal injury lawyer, I have handled many cases like this and my clients were able to recoup their economic losses and get reimbursed for their medical expenses, and compensation for pain and suffering.

Under California law, your policy must include uninsured coverage unless you decline that coverage in writing. This is guaranteed by Insurance Codes section 11580.2. All too often these days I see people decline that coverage as a cost savings. The old saying "penny wise and pound foolish" is really appropriate here.
NEVER DECLINE UNINSURED COVERAGE ON YOUR OWN POLICY. This coverage will protect you if you are injured in an accident in your own car, as a passenger in another car, as a pedestrian or bicyclist hit by an uninsured motorist.

I recommend you match the amount of uninsured protection with the amount of your liability protection. For example, if you have a $100,000/$300,000 policy, make sure your uninsured coverage is the same.

Scenario #2. You are injured in a car accident and the at-fault driver is uninsured. You only have liability insurance and have declined uninsured coverage on your own policy. You will not be able to recover. Therefore your medical care will depend solely on your own health insurance and if you are unable to work as a result of the accident or incur other out of pocket expenses you will not be able to recoup them, unless you can actually sue the other driver and collect against him personally--an unlikely outcome. More likely, the other driver will be without any assets or other means of paying a judgment.

It is against the law to drive without insurance and the adverse driver will most likely have their license revoked but that is of little consolation to you as you struggle to pay your medical costs and may be out of pocket for your economic losses. I cannot stress enough the importance of making sure you have adequate uninsured motorist coverage on your policy. Take the time right now to review your policy and make sure you have the appropriate uninsured insurance protection.

Resources:

One in Seven Drivers Have No Insurance, USA Today, September 12, 2011

If you've been glued to the TV watching the NFL playoffs for the Super Bowl, you have undoubtably seen brutal hits taken by football players, some resulting in head trauma and concussions. Alex Smith, the San Francisco 49'er quarterback, saw his career sidelined by a concussion. Many players, both professional and at the college level, downplay their symptoms to avoid that outcome. The long-term effects of concussions are still somewhat unknown.

A concussion is a traumatic brain injury where the brain is shaken inside the head. It cause a variety of physical, mental and emotional symptoms including headaches, dizziness, nausea, difficulty thinking clearly, irritability, anxiousness. The effects are usually temporary but the recovery period varies. You can sustain a concussion without losing consciousness. As an Oakland Personal Injury attorney, I have seen many clients suffer concussions in falls and automobile accidents.

So I was intrigued to hear of a research undertaking at Stanford University to try and understand what causes a concussion. The researchers have developed custom mouth guards with sensors that measure how violently a player's head gets whipped around during a game. Throughout this past season, the players wore these mouth guards that recorded and measured the impacts to each players' head and brain when his was hit.

The research has found that helmet- to- helmet impacts aren't the only danger for a player but sometimes equally as dangerous is the force from their heads hitting the ground after a hit. Another factor considered is the multiple directions the head goes from an impact and the position of the head prior to the impact. Many times I have seen clients who have been involved in a pedestrian/vehicle accident sustain injuries from hitting the ground after the impact of the vehicle. The impact of an airbag deployed in an accident can cause complicate the head and neck injuries in an accident as well.

According to David Camarillo, an assistant professor of bioengineering at the Stanford School of Medicine, football is a good model system for studying head injuries because of the high injury incidence, however he expects the basic finding of this research to apply to several fields including transportation.

When a client comes to me after sustaining a head trauma, my first recommendation is to make sure they have been seen by a health care professional immediately. Test such as CT scan or other neurocognitive tests may be necessary although diagnosis can be difficult. Sometimes these test will not be conclusive. I have hired experts in the field of biomechanics to assess the mechanics of the accident, the force of impact on the body. Like the football players, an auto accident can cause the head to move in more than one direction. A biomechanical expert is extremely important in cases with severe head injuries.

Since the symptoms and severity of concussions vary, I spend a lot of time talking with my clients and their families about how this has affected their day to day life.
Your job performance at work may be affected by not being able to think clearly and process information the same as prior to the accident. Maybe you are unable to return to work. This may have financial implications. Relationships can be affected if you suffer depression, anxiety and a range of emotions. Many clients have trouble sleeping.

With the variable of symptoms and recovery, insurance companies many times do not view the seriousness of a post concussion syndrome or TBI (traumatic brain injury) in the same way that they view a broken bone such as a broken leg, arm or spine fracture which can be readily seen on an x-ray or MRI. Conveying the seriousness of the injury is my job as your attorney. I find the best experts to provide evidential analysis to plead your case.

Resource:

Stanford researchers measure impact of football concussions, Stanford Report, October 24, 2012

The holidays are a time for families getting together, seeing good friends, and sharing time with those we care about. Often times, we're together for family dinners, or parties at people's homes. It's important to remember during this festive time, the potential consequences of drunk driving as we are out and about.

The National Highway Traffic Safety Administration shows that 32,885 people were killed in auto accidents in 2010. Thirty one percent of those accidents involved intoxicated drivers. 70% of those accidents involved drivers whose blood alcohol level was above .15 grams per deciliter or higher. In California, the law provides that you are driving intoxicated if your blood alcohol level exceeds .08. Therefore, 70% of those intoxicated drivers involved in fatal accidents had blood alcohol levels which were almost twice the legal limit in California.

When people drink and drive, they are putting their own lives at risk and the lives of others. If you are arrested for impaired driving, you can lose your driving privileges, incur higher insurance rates, pay court fines, attorneys fees, and spend time in jail.

In California, if you are intoxicated and injure someone in an automobile accident, you will be responsible for the personal injuries you cause. A personal injury claim includes payment of the injured person's medical bills, compensation for lost earnings, and for their pain and suffering. These damages may be covered by your automobile liability insurance. However, if your limits are not high enough you may be personally responsible for payment of compensation to the injured person. If you are intoxicated, you may also be liable for punitive damages to the injured person. These are damages over and above those for medical bills, lost wages, and pain and suffering. The damages are assessed as a punishment for driving drunk, with a conscious disregard for the safety of others. If someone dies as a result of one driving while intoxicated, the person would be responsible for wrongful death damages.

So this holiday season, you can help prevent a tragedy by taking these steps. Plan ahead and designate a sober driver before the party begins. If you will be driving, do not plan to drink. Even one too many drinks increases the risk of a crash. If you have been drinking find another way home other than driving yourself. Use a taxi, call a friend, or use other public transportation.

As an Alameda personal injury lawyer, I have unfortunately seen many drunk driving accidents over the years. I have personally seen the tremendous impact such accidents can have on the innocent victims. This holiday season, please take all the steps necessary to keep your holiday, and your loved one's, a safe and merry one.

I recently saw a fascinating article about self-driving cars. And no, this isn't some far off technology. The technology is here today and is being used by several auto manufacturers. Even Google is getting into the act. It's called robotic car technology.

Google has actually put software on cars right now. Their test cars have driven over 300,000 miles without a mishap. The cars have been on freeways, winding roads, parking lots and congested city streets. Google says they have an interest in reducing the number of accidents and fatalities as a result of auto accidents. Google claims that with this technology, drivers won't be distracted with cell phones, eating lunch while driving etc.

Therefore, Google is sponsoring a bill in the California legislature to allow self-driving cars, and allows the DMV to establish safety standards for these automobiles.

There is a fascinating video showing the car in operation. The "driver" is a man who is legally blind. He "drives" down the road, stopping at stop signs, and even pulling into a drive-through restaurant for a taco. He then takes off eating his taco with both hands as he merrily travels down the road.

As a consumer, I am amazed at this technology. As an Alameda personal injury lawyer, I'm overwhelmed with the legal issues that will be raised by this technology if it evolves and becomes the norm (which I have no doubt it will).

But consider these issues. Suppose the car gets into a crash due to a failure of technology. Who is legally responsible for the property damage and personal injuries caused by such a crash? Will the manufacturer be liable for products liability claims where the product fails to perform as the reasonable consumer would expect?

Under California's current law, drivers have a non-delegable duty to keep their car in good mechanical condition. Therefore, if your brakes fail you and you get in an accident, you can't put all the blame on your mechanic. You are still responsible for any personal injury or property damage claims caused by the mechanical failure. Will the non-delegable duty rule apply to technological failures with your self-driving car as well?

What will happen with our insurance rates? Theoretically, insurance rates are based on people's age, driving records, number of miles driven, and other demographic factors. If the car drives itself, what difference should it make who is driving the car, or where they are driving? If everyone had a "self-driving" car, wouldn't everyone's driving habits be considered equal. You would expect that insurance rates would drop dramatically (but don't hold your breath), and would be the same for everyone.

Can you get a traffic ticket for road violations when you aren't really driving the car?

As you can see, there are lots of unanswered questions that will be presented by this new technology. In the end, the legislature, and the courts will work out these issues. However, the growing pains should be worth the effort, as the public hopefully will end up with a lot safer driving environment.

Resource:

California Considers Giving Self-Driving Cars Green Light, Quest, August 24, 2012

It's no secret that car crashes are the number one cause of death and serious personal injuries among teenagers. As parents, we are constantly reminding our kids of the dangers of driving, and things not to do when they are behind the wheel. As an Alameda personal injury lawyer, I am always looking for more ways to improve driver training and safety. Now, a major insurance company and experts from Children's Hospital of Philadelphia are recommending a new approach to driver training for teenagers--positive reinforcement. They call the campaign "Celebrate My Drive."

The premise of this campaign is that scare tactics don't work with teenagers. (They all think they're invincible, don't they?) So telling them gory stories at the dinner table about the latest teenage tragedy on the road, or repeating for the umpteenth time the dangers of texting and driving just doesn't seem to phase them. So you might try what is now being recommended in this campaign.

According to a pediatrician at the Center for Injury and Prevention at Children's Hospital of Philadelphia, the best way to adopt positive behaviors is to provide positive reinforcement. "Its much easier to teach somebody to do a behavior, make them feel they can master a behavior," than being negative. Rather than telling the kids what they shouldn't be doing, or what they did wrong, try to give advice in a positive manner.

When taking your kids out for their first driving lessons, if you help you child gain mastery over each driving skill they learn one at a time, this will make them feel much more competent and self-assured behind the wheel. You might start with starting the car moving slowly, then smooth stopping, then driving straight without swerving and so forth. Practicing each skill over and over before moving onto learning the next skill will boost their confidence while enhancing their skill levels.

Once your child has passed the driver's test, the learning shouldn't stop there. The parent should let the child drive with the parent in the car as much as possible (By the way the lowest risk of a teenager having a car accident is when a parent is in the car. On the other hand, when two or more other teenagers are in the car, without an adult, the risk of the teenager having an injury accident increases by fivefold). As you are watching your child drive, reinforce all of the good skills that are being used by the child by complementing them specifically on that behavior. One of my pet peeves is following too closely. So I always complement my kids whenever I see that they have left a nice amount of space between our car and the car in front of them.

With regard to cell phone use, when your child turns his phone off upon entering the car, you can recognize how he/she is respecting the rights and well being of other drivers by turning the phone off and driving safely. There are many ways that we can be creative to positively reinforce our child's good safe driving habits. Just remember the old adage: "you catch more flies with honey than vinegar." It's true with teaching our kids safe driving skills as well.

Resource:

Cheer Up: It's just Your Child Behind The Wheel, NPR, July 30, 2012

I just got back from Healdsburg where I participated in the Healdsburg Harvest Century Bike ride this past weekend. This is a beautiful ride which was organized by the Sonoma County Bicycle Coalition. The ride is considered one of "The 7 Greatest Rides on Earth" by Bicycling Magazine. It is an annual ride which I have participated in for the last three years.

The ride started and ended at the Simi winery in Healdsburg. You ride through the Sonoma wine country at your own pace with very little automobile traffic around you. The weather was absolutely fantastic. However, you need to get an early start as the temperatures were in the 90's by 11:00 a.m. (My friends and I were finished our ride by 10:30 a.m. having started at about 7:00 a.m.).

There are four different routes you can take-- a 20 mile, a 35 mile, a 60 mile, or a 65 mile course. The 20, 35, and 60 mile routes are moderate in difficulty, They consist of mostly flat land, some rolling hills, and an occasional steep climb. The highest climb is 492 feet. For the 65 mile ride, the Epic Geyser Ride, the course is more challenging as you have climbs rising to 2421 feet.

There are two rest stops along the way after about 20 miles and then again at 40 miles. The stops have lots of snacks, including fresh fruits, nuts, and drinks to keep you going. There are also ample restrooms. All of the stops also have bike mechanics so if you're having any problems, they are there to help. SAG cars also ride the course to provide mechanical help for these who need it on the course itself. At the end of the ride, there is a wonderful lunch provided at the Simi winery which includes your choice of barbecued chicken, hamburgers, or wood fired pizza. Wine and soft drinks were also available.

As an Alameda bicycle accident lawyer and avid cyclist, I appreciated how the ride was safely organized. All routes were well marked, with good maps and directions given to all riders. The riders were required to wear helmets which is a must to prevent head injuries from bike accidents. The routes which were chosen were well paved, with little traffic to provide the ultimate in riding satisfaction and safety. The option of four different routes makes this a ride for any level of rider.

I recommend going up and spending a few days with friends or family and then participating in the ride together. I was fortunate enough this year to go up with my wife, and three other couples. We all stayed at a lovely vineyard overlooking the Dry Creek Valley, which includes numerous wineries including the Raymond Burr Winery. On our first night we ate at a great restaurant in Geyserville, Diavola's Pizzeria & Salumeria. All of the individual pizzas are fantastic. I enjoyed the "inferno" which has spicy Italian peppers, mozzarella, roasted red peppers, and tomato basil. For desert we had s'mores which you have to try. It's a combination of chocolate ice cream, with home made graham crackers, chocolate, and fresh made marshmallows served with a small metal pot of hot coals on the side so you can make your own s'more right on the spot!

My friends and I look forward to riding in the Harvest Century Ride again next year. If you have any interest in biking, wines, or just a good old time with your friends, I highly recommend it.

Resource:

26th Annual Healdsburg Century Ride 2012

One of my favorite avocations when not practicing personal injury law is computers--in particular, Apple computers. I've been an Apple fan since I bought my first Mac back in 1987. I've got all Mac computers at home and the office, an iPhone, an iPad--the works! So I found it particularly interesting when I ran across an article by Steve Wozniak (the co-founder of Apple) about his rules of the road and his general approach to driving. I thought you might enjoy learning about them as well.

What's the golden rule of driving safety according to the Woz? Don't offend other drivers. It's kind of a zen approach to driving. He advocates that slower traffic always remain to the right. Although he hates reckless drivers who weave in and out of traffic, he simply doesn't want to interfere with motorist who simply want to pass him, even if they are driving faster than the speed limit. Let everyone in (more Zen). He says if we help each other out, we're all going to get where we want to go. So when you see that person who wants to change lanes into your lane, it's ok to tap the brakes and let him in.

What are the Woz's best driving habits? He always uses his blinkers, never tailgates, and get this--He buys and studies the entire DMV handbook. His worst driving habit is relying on his GPS navigation system. Who hasn't been taken on a wild goose chase while relying on one of the internet mapping sites or GPS?

And Woz's favorite car is? The Prius, of course. It's quiet and environmentally friendly. He has owned nine of them, and currently owns four. (P.S. he reads the entire owners manual and highlights portions and makes sticky notes about things he might not have known if he hadn't read the manual). When not driving, his favorite mode of transportation is the Segway. When riding his Segway, he operates as a pedestrian would, obeying all of the California laws governing pedestrians, including use of crosswalks, obeying lights, etc.

As an Alameda personal injury lawyer, I agree with Woz's approach to driving. Be defensive and treat other drivers with respect. It's ok to let people change lanes in front of you. Don't tailgate. These make for great safe driving trips and a more pleasant world for all of us. One thing he didn't mention was texting or phoning while driving. I'm sure he would agree, put that iPhone down when behind the wheel. If we all followed these simple rules, think of all of the automobile injury accidents that we could prevent.

Resource:

Guest Mr. Roadshow: Steve Wozniak on the rules of the road according to Woz, Mercury News, July 24, 2012

I have written extensively about the dangers of texting while driving. It is clear that the use of a cell phone and/or texting cause driver distraction and increases the likelihood of personal injury accidents and deaths. Recently, I ran across three articles pertaining to texting and driving. It's interesting to see how different parties, i.e. government, private industry, and the consumer look at this issue.

The first article dealt with a new law passed by a small town in New Jersey. The City of Fort Lee, New Jersey recently passed a law which prohibits pedestrians from texting and walking. In that small town of 35,000 people there have been three pedestrian fatality accidents this year alone. The government hopes to reduce the number of serious pedestrian accidents by prohibiting the use of cell phones by pedestrians. They now issue $85 tickets to texting pedestrians. The city residents reaction was that the tickets were a lot of money, and they felt they could safely walk while texting. But, the City relied on a Stony Brook University study which concluded that people who were walking and texting at the same time were 60 per cent more likely to veer off line than non-texters.

In the Washington Post, there was an article concerning the increasing liability of corporations who permit their employees to text or use cell phones while on the job. The Post noted four separate accidents where jurors found companies liable for their employees accidents when the employees were texting behind the wheel. In one case, an Arkansas lumber company employee crippled a 78 year old woman. The company ended up paying the woman $16.1 million in compensation for her catastrophic injuries. In another case, a cable company employee ran into the rear of another car, killing a thirty-two year old woman resulting in a wrongful death suit. Several more serious injury accidents are cited in the article.

The National Safety Council has done extensive studies on the incidence of cell phone use, texting, and their relationship to auto accidents. In 2010, 9.4 per cent of highway fatalities were related to driver distraction. The council estimates that mobile phone use is a contributing cause to 24 per cent of auto crashes!

So we have the small city of Fort Lee which recognizes the dangers of texting and how it can distract even pedestrians. We have juries across the country recognizing the serious dangers of texting and cell phone use, and holding companies accountable for the injuries and deaths that their employees cause. And what do we have the auto manufacturers doing? The auto industry is going full bore ahead with installing more distracting devices such as Wi-Fi equipped vehicles which are enabled for Facebook, Twitter, etc.

The Chronicle reported this week that auto manufacturers are moving quickly ahead to equip their vehicles with Wi-Fi. Volkswagen's Audi brand was the first to offer Wi-Fi access in their vehicles. Now Nissan Motor Co. General Motors, Co., and Ford Motor Co. are going forward with similar systems. Needless to say the U.S. Transportation Secretary is horrified by this trend. Secretary Ray LaHood is pursuing strict guidelines to quell in-dash distractions behind the wheel. The Chairman of the National Transportation Safety Board, Chairman Deborah Hersman, was likewise appalled. She stated, "If the auto manufacturers focused as much on safety as they do on marketing their products, we would save a lot of lives."

As an Alameda personal injury, unfortunately this is a theme that I see repeated over an over- Corporations putting profits above safety. If the little city of Fort Lee recognizes the distractions that texting can cause, why don't the big auto manufacturers? I don't think its too hard to come up with the answer.

Resources:

Employees use of cellphones while driving becomes a liability for companies, Washington Post, May 20, 2012

Texting While Walking Banned in New Jersey Town, ABC News, May 13, 2012

Carmakers add Wi-Fi, Facebook, other tech features, SFGate, May 20, 2012

As a father of four children and an Alameda car accident lawyer, I have a lot of experience with teenage drivers. I've heard and seen just about everything when it comes to teenagers and driving. When my third youngest child got her license about three years ago, California had just enacted a new law, which placed more restrictions on teenage drivers.

That California law provides that a new driver under the age of 18 will receive a provisional license. During the first 12 months after obtaining the license he/she must not transport anyone one under the age of twenty at any time unless accompanied by a parent or guardian. Driving between the hours of 11:00 p.m. and 5:00 a.m. is strictly prohibited.

You should have heard the complaints my daughter voiced for the entire 12 months that she was under the restrictions. Now, my youngest son is just finishing his provisional driving period and the kid's complaints and arguments, and my responses remain the same. Other kids in the car are a big distraction for new drivers, that can and do, lead to serious personal injury car accidents.

Now I have a new study to back up what I knew all along. The American Automobile Foundation for Traffic Safety released a report showing a strong relationship between the number of passengers in the vehicle and the risk of a teenage driver dying in the car crash. The study found that the likelihood of a fatal accident with a teenage driver under the age of 18 increased with each addition young passenger present in the car. Look at these eye popping statistics:

• Fatality risks increases 44% when carrying one passenger younger than age 21 (and no older passengers)


• Fatality risk doubles when carrying two passengers under age twenty-one;


• The risk of death quadruples when carrying three or more young passengers under the age of 21.

One of the kids' biggest arguments for driving other teenagers is the standard refrain "that everyone else's parents" allows them to drive others. So the first thing we have to do as responsible parents is to make sure our own kids are obeying the law. So, we shouldn't be allowing our kids to drive others while they still have their provisional license, nor should we allow our kids to be passengers in their friend's car while they have provisional licenses. Signing a parent teen driving agreement that the child will not drive others reinforces the importance of this. Make sure other parents are aware of the law if you know that their child is driving others while under age. Finally, help provide other transportation alternatives for the kids to alleviate some of the hardships that do arise sometimes by complying with this law.

We know anecdotally (and probably experientially) that the more kids are in a car, the more distractions there will be, and the greater likelihood of a serious or even fatal car accident. Now a study proves this. As responsible parents, it is our duty to make sure our kids comply with the law and drive safely. I encourage you to talk about this study with your children, and your children's friends' parents. The more our kids obey the provisional driver restrictions, the safer they will be.

Resources:

Teen Driver Safety, AAA Foundation For Traffic Safety, May 8, 2012

California Teens, California Department of Motor Vehicles

A pedestrian who was crossing Central Avenue in Alameda was hit by a sports car on April 21, 2012. The victim was hospitalized, and is now recovering at home. The police say that the victim and another person were crossing the street in between intersections in the 700 block of Central Avenue at about 1:45 p.m. At that time a bystander yelled a warning to the two men. One was able to jump out of the way. The other was hit by the car which then fled the scene.

As an Alameda personal injury lawyer, a couple points come to mind regarding this accident. First, when you are involved in any accident, you are legally obligated to stop and identity yourself, and provide your insurance information. This is true regardless who is at fault for the accident. Second, even though cars have the right of way when traveling down the road, in between intersections, drivers still have an obligation to keep their attention on the roadway and avoid injury to others where possible. In other words, jaywalkers aren't fair game for drivers as they cross the road in front of you.

Looking at the conduct of the pedestrians in this case, the first question that pops out is why are they jaywalking? The 700 block of Alameda is a busy street. There are nearby intersections, with traffic lights to protect pedestrians. Under the law, a pedestrian also has the legal obligation to keep a look out for on coming traffic and obey all traffic laws. According to the reports, this was not done in this case.

It is hard to analyze the entire picture from a legal liability standpoint, because we don't know the speed of the driver, where he came from, whether there was intoxication involved, why the pedestrians were in the street, and where the point of impact was located. However, a couple of points can be made.

With regard to the injured pedestrian, he will not be able to sue the hit and run driver for his personal injuries unless the driver can be located. Therefore, his only method of obtaining compensation would be through his own uninsured motorist coverage on his automobile, if he has one.

Uninsured motorist protection is required by California law for every policy of automobile liability insurance issued in the state. It must be issued with limits of no less than $15,000.00 per accident. It protects drivers against uninsured drivers, but unbeknownst to many people, it also protects pedestrians and cyclists if they are injured by an uninsured driver or hit and run driver.

In a successful uninsured motorist claim, the pedestrian can obtain full reimbursement of his medical bills, any lost wages incurred, and general damages for his pain and suffering (up to the amount of uninsured motorist coverage that the individual carries).

In this case, the pedestrian would be able to make a claim against his own insurance carrier for the damages caused by the hit and run driver, assuming he can prove that the driver was negligent. His damages would then be reduced because of his own fault for jaywalking. This is the law of comparative negligence.

The important thing to remember about pedestrian accidents, and hit and run accidents, is that if you are injured in a accident like this, you can recover fully from your own uninsured motorist carrier. Therefore, it is also important to know about your auto insurance coverage and how much uninsured motorist coverage you have and whether it is adequate to fully protect you if you are injured by an uninsured or hit and run driver.

Resource:

Victim of Central Ave. Hit and Run Recovering, Alameda Patch, April 25, 2012

Things aren't always what they seem. What often appears a simple accident is often much more involved. The shipping accident of the Cosco Busan is a case in point.

On November 7, 2007, at about 8:30 a.m. in foggy weather, a 901 foot long container ship, the Cosco Busan, crashed into the base of a tower of the San Francisco Bay Bridge. The ship was operated by a bar pilot and was outbound from Oakland and was headed to South Korea. The impact to the ship caused a 212 foot long gas in the port side of the ship and breached the fuel tanks and ballast tank. As a result, over 53,000 gallons of fuel were released into the San Francisco Bay. The spill killed more than 2,500 birds, temporarily closed a fishery on the bay, and delayed the start of the crab season. Monetary damages were estimated to be $2.1 million to the ship, $1.5 million to the bridge and more than $70 million for clean up of the environment.

Last week the owners of the Cosco Busan sued the Northern California pharmacists, CVS Pharmacy, claiming that they negligently dispensed prescription drugs to the pilot of the ship. In their legal filings, the owners claimed that CVS "recklessly" provided pills to the pilot, and so clouded his judgement and dulled his reflexes that they contributed to the cause of the accident. As a result of the spill, the owners of the ship have paid out over $18 million dollars in fines and settlements. The lawsuit claims that CVS should be responsible for part of this tab since the pharmacy did not warn the pilot of the ship of the dangers of combining these drugs, nor consult his doctors, or licensing authorities.

Under California tort law, a negligent person or entity is responsible for all damages caused by their negligent conduct. In terms of economic losses, if a company causes injury or damages to others, it is responsible for the damages caused even if there whether are other causes of the accident. It does not get off the hook for damages just because there may be other negligent parties that also contributed to the accident. This is called the law of joint and several liability.

As a San Francisco personal injury lawyer, I see that it is often the case that there are multiple causes for a particular accident. For example, in a serious automobile accident, which causes personal injuries, the most obvious cause of an accident may be the negligent driver. But often times, there are other significant causes such as defective conditions of the cars, or dangerous conditions of the roadway which may have also contributed to the accident. Hence, it is extremely important in any accident type case, that all probable causes of the accident be identified.

In the Cosco Busan case, the National Traffic Safety Board which investigated the accident, found numerous causes of the accident. Among them was the fact that the pilot was operating the ship with "degraded cognitive performance from his use of impairing prescription medications." If the owners of the ship can prove this in court, and that CVS's conduct was a substantial factor in causing the pilot's condition, they will be able to recover substantial amounts for the damages that they have already paid out to others.

The teaching point from this case is the importance of a thorough investigation of any accident. When a serious personal injury accident, or property damage accident occurs, there are often multiple causes. Each of these causes must be identified and all negligent parties must be brought into the case. In this way, full justice can be obtained for the injured victims.

Resources:

Cosco Busan owner sues pharmacists for giving ship's pilot pills in 2007 Bay spill, Mercury News, April 25, 2012

Marine Accident Report, National Traffic Safety Board, November 7, 2011

It is not uncommon for children to suffer head injuries in accidents such as automobile collisions, bike accidents, and sports activities. A new study by the Archives of Pediatric and Adolescent Medicine documents the long term effects of these types of brain injuries in children.

The researchers looked at the progress of 250 children admitted to two hospitals for either mild traumatic brain injuries or broken bones. The study showed that those with mild traumatic brain injuries were more likely than the others to have headaches, tiredness, and trouble thinking a year after being seen at the emergency room. This was especially true if there was unconsciousness following the injury or there were visible changes on the MRI brain scan. Even small impacts to the child's head can lead to long term problems.

Given the seriousness of traumatic brain injuries, it is important to recognize the symptoms. The common symptoms include one or more of the following signs:
The child appears dazed or stunned; there is confusion; cannot remember instructions: moves clumsily: answers questions slowly; loses consciousness, even slowly; shows mood or personality changes; cannot recall events prior to or after the head injury. Other signs may include headaches, nausea, vomiting, dizziness, double vision, sensitivity to light, sensitivity to noise, or sluggish feelings. If you child displays any of these symptoms following a blow to the head caused by an accident, fall, or collision, they should be seen by a doctor immediately.

Each year more than a half million children end up in emergency rooms with traumatic brain injuries. These can cause long term problems which may necessitate the child needing extra held with school, due to headaches, fatigue or other physical symptoms which can often last up to a year and in some instances, can be permanent.

As a traumatic brain injury lawyer in Alameda, I have represented many children with mild traumatic brain injuries. I caution my clients that their child's head injury should not be taken lightly. The symptoms should be monitored closely and the child should be held our of potentially dangerous activities, such as contact sports, until such time, as he/she has fully recovered from the concussion. In cases where personal injury actions have been filed because the injury was caused by the negligence of someone else, such as in a car accident, or bicycle accident, it is important to fully document the residual effects or the injury, and not conclude any settlement until the child has fully recovered from her injuries.

In the case of minor traumatic brain injuries where litigation is involved, the residual effects can often be subtle but debilitation nonetheless. Therefore, in these cases, a child should be seen by a pediatric neuropsychologist who can perform the appropriate psychometric testing to identify and document subtle deficits which can present learning and retention problems that may be permanent in nature.

Resources:

target="_blank"Reliable Change in Postconcussive Symptoms and Its Functional Consequences Among Children With Mild Traumatic Brain Injury, Archives of Pediatrics and Adolescent Medicine, March 5, 2012

Injury Prevention & Control: Traumatic Brain Injury, Centers of Disease Control and Prevention

Facebook is the largest social network in the world. The company was recently in the news when it warned employers not to demand the Facebook passwords of prospective employees. Apparently, many employers are now attempting to get this information before hiring individuals. The company claimed that it's an invasion of privacy that exposes companies to legal liability. As an Alameda personal injury lawyer, I am starting to see that insurance companies are also trying to get this information to defend claims in auto accidents, slip and fall, and other personal injury claims.

The legal question is whether a person who files a personal injury lawsuit waives his or her entire right of privacy as to their Facebook and other social network postings. There have been no California appellate court decisions directly on point, however, a state court decision out of Pennsylvania has considered the issue.

In the Pennsylvania case, Largent v Reed, the plaintiff filed a personal injury lawsuit in which she claimed severe personal injuries and emotional distress caused by an auto accident. The lawyers for the defendant claimed that the person's Facebook page had several photographs of her enjoying her life and going to the gym. The Pennsylvania court ruled that the person's Facebook page was not protected by her right of privacy and permitted the discovery.

The Pennsylvania case is not binding on California Courts however. And there is good reason to believe that a California Court might rule the opposite way and protect the plaintiff's right of privacy.

California courts have a long history of protecting individual's rights of privacy and rights of association. It seems to me that the Facebook and social media environment in general involves not just the individuals right of privacy but the right of others who are Facebook friends. In other words, the rights of all of the people you associate with on Facebook are also affected if the Courts permit disclosure of this type information.

The California Supreme court over thirty years ago recognized that a person's right to privacy and his association rights are not necessarily waived just because a personal injury lawsuit is filed. The case was Britt v Superior Court. There, the plaintiff's sued a local airport for damages for diminution of value to their property, personal injuries, and emotional distress related to the use of the airport. In their defense, the airport sought detailed information about the plaintiffs' activities and affiliations with certain organizations. The Court held that this information was protected by their right of associational privacy. In denying the defendant permission to obtain this type of information, the court stressed that compelled disclosure of an individual's private associational affiliations and activities can pose one of the most serious threats to the free exercise of this constitutionally endowed right.

A cogent argument can be made that discovery of Facebook information also infringes on this constitutionally protected right to freely associate with others. After all, the Facebook pages are not open to all and have privacy settings all for the specific purpose of limiting who you are sharing information with. Under the reasoning of Britt v Superior Court, the individual should have the right to keep this information private.

Of course, no California court has made a binding decision on the matter. I would suspect that even if an appellate court were to take on this issue, that it would ultimately end up before our California Supreme Court again. As a matter of practicality, however, I would strongly suggest, that individuals be careful about what they put on Facebook or other social media sites. While a strong argument can be made that such postings are protected private materials, courts, such as that in Pennsylvania may see it otherwise.

Resources:

Facebook warns employers not to demand passwords, SF Gate, March 23, 2012

Britt v Superior Court, 20 Cal 3d 844 (1978)