Distracted Drivers Increase the Changes of Deaths and Injuries in California and U.S. Roads

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from M. from Daly City who asks: I recently received a call from my son, saying he was involved in an “accident.” Luckily, he is fine. He went on to say that the other driver was looking down at their phone, not paying attention and rear-ended him. I always thought of “accidents” as being unavoidable; this seems like the driver could have avoided it. Was it really an accident?  

Dear M.,

I am glad to read that your son is fine, and that is the most important thing. But you are correct. Over the years, we as a society seem to have found a way to excuse peoples’ negligence by classifying them as an “accident.” Using a cell phone while driving creates the potential for deaths and injuries on California and U.S. roads. The underlying thought is that “they didn’t mean for it to happen,” so it was an “accident.”  As a society, we need to get away from alleviating someone’s fault by classifying their actions as a an “accident” and look more closely at the underlying conditions. 

Accident has two meanings:

  1. an unfortunate incident that happens unexpectedly and unintentionally, resulting in harm, and
  2. an event that happens by chance.

In the situation involving your son, people would say that the first definition would apply to the driver that caused the collision; but let’s think about that. The cause of the crash was an inattentive driver who was intentionally using their phone and not paying attention. Though they may not have intentionally struck your son’s vehicle, everything else leading up to that was intentional. Therefore, the outcome should not have been unexpected. Why would we consider this to be an accident?

Secondly, accidents are supposed to happen by chance or be random. But studies are finding this not to be the case. 

In a recent interview with Marin Cogan, Jessie Singer, author of the new book There Are No Accidents, talks about the term “accident” and explains “[t]here are a lot of problems with it. Accidents are supposed to be random, right? And unpredictable. If that were true, then accidental death would be randomly distributed across the country, but it’s not. When we look at the data, we see that Black and Indigenous people and people living in poverty die by accident most often.”

The Governors Highway Safety Association proved this statement to be true. They published an Analysis of Traffic Fatalities by Race and Ethnicity in June of 2021. In that analysis, several studies were reviewed and cited to, some of which were: 

  • Motor Vehicle Traffic-Related Pedestrian Deaths – U.S., 2001–2010 (Naumann and Beck, 2013), wherein the Centers for Disease Control and Prevention (CDC), which analyzed 2001–2010 data from the National Vital Statistics System (NVSS). 
  • Socioeconomic Differences in Road Traffic Injuries During Childhood and Youth: A Closer Look at Different Kinds of Road Users (Hasselberg, et al, 2001) a Swedish Study. 
  • Vision Zero Chicago: Action Plan 2017-2019 (City of Chicago, 2017) and  
  • 2015-2019 Fatality Analysis Reporting System (FARS data). 

They found that Blacks, Indigenous and People of Color are disproportionately represented in fatal traffic crashes. Key findings from the research indicated that: 

  • When measured against all causes of death, motor vehicle traffic crashes account for disproportionately large percentages of fatalities, particularly among Native American and Hispanic persons. 
  • Black children ages 4–15 had the highest fatalities involving pedestrians and other people not in vehicles as a percentage of all motor vehicle traffic fatalities. 
  • American Indian/Alaskan Native persons have the highest annualized, age-adjusted traffic-related pedestrian death rates of all races/ethnicities. 
  • Census tracts where low-income and minority populations are more concentrated have measurably higher levels of vehicle traffic and higher speed arterials. 
  • A Swedish study found the injury risk for pedestrians and bicyclists was 20% to 30% higher among the children of manual workers than those of intermediate and high-level salaried employees, indicating socioeconomic status can influence the risk of motor vehicle crash involvement. 

Beyond race, socioeconomic status can influence the risk of motor vehicle crash involvement. The City of Chicago’s 2017 Vision Zero Action Plan included a reference to public health data that show traffic crashes affect Chicago communities unequally. Chicagoans who live in areas of high economic hardship have an increased risk of being in a severe crash and die in traffic crashes more often and at a higher rate than other city residents.

The key findings from the analysis of 2015-2019 FARS data: 

  • Compared with all other racial groups, American Indian/Alaskan Native persons had a substantially higher per-capita rate of total traffic fatalities. 
  • Black persons had the second-highest rate of total traffic deaths. This rate was true for total traffic deaths, pedestrian traffic deaths and bicyclist traffic deaths.

When interpreting the disproportionate representation of race and ethnicity in motor vehicle crashes and traffic fatalities, we must recognize that ethnicity and race, to a certain degree, are intertwined with other factors that affect crash risk. Risks include as socioeconomic status and overall investments in crash prevention where people live. These investments include roadway infrastructure, traffic enforcement, community engagement and traffic safety education. None of which is random nor unexpected.

At the end of the day, as Jessie Singer has indicated, “[w]hen we say “it was an accident,” we’re saying it wasn’t my fault. It wasn’t their fault. In doing that, we’re almost always focusing on the wrong thing and setting up the same accident to happen again.” 

We as a society need to start focusing on right thing; we can start by not calling everything an accident.

 

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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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Navigating A Hit and Run Claim

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland: I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least.  The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):

What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?

There are two ways that med pay typically works:

  1. You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
  2. You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?

There are several reasons this coverage is useful even if you have health insurance.

  1. First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
  2. Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments.
  3. Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):

What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.  

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.  

How does it work?

With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage.

  1. First, there must have been contact between your vehicle and the hit and run vehicle.
  2. Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
  3. Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement.

These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?

In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault.  (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.  

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?

Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.  

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The Difference Between Personal Injury and Workers’ Compensation

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him.  Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.  

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.  

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages. 

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.  

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.  

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner.  We wish your friend a speedy recovery.

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Who is responsible for Dangerous Conditions on Roadways?

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Ashely L.  from San Jose: My uncle Ralph was driving his motorcycle in an unincorporated area of San Jose when he lost control and went down. It appears that the road was unkept. I am trying to help my uncle, who doesn’t even have email and is not good with using the internet, with his case. The police officer said that the road should have had a sign and a barrier, because lots of accidents happen at that location where my uncle lost control. I am not sure how we go about proving the road caused my uncle’s accident. Does whomever own the roadway have insurance, like cars do to pay claims? 

Ashely, I am sorry to hear that your uncle was in the accident. The type of case you are describing is called a Dangerous Condition case. These are very complex legal cases, and they are not the kind of case that I advise that injured victims, or their families tackle alone. To prove a Dangerous Condition case, you must prove that the roadway was a dangerous condition, that the government entity who controlled or owned the road, knew or should have known about the dangerous condition, and that they had time and money to fix the condition, but did not. Your family would also have to prove that the dangerous condition in the roadway caused the accident. Dangerous condition cases can involve motorcyclist, runners on a highway, cars, trucks, or even bicycles. The Defendants in these cases are the cities or counties that own the road. 

It is important to document the scene immediately with photos if the injuries are serious. The first thing our law firm does is go to the roadway in question or use the police report to pull the location up on Google Earth. Often the police reports for accidents, wherein a roadway condition may have contributed to the loss, do not document the scene well, or even mention a dangerous condition that may have contributed to the accident. We have personally litigated a motorcycle collision wherein a pothole caused the crash, yet no pothole was photographed or even mentioned in the police report. In this case, a witness was able to describe what the motorcyclist hit, and what happen to him, as our client had no memory of the crash.  

After visiting the scene, the next thing your attorney should do is research the accident history through the TIMS database maintained by UC Berkley and issue a Public Records request of the county and city the subject roadway is in. The TIMS database allows you to enter in a county and city pull all accident history for the location by way of a map or a list. This can help us get an initial baseline on whether or not a dangerous condition can be proven. The number of accidents at a location, if it is higher than normal, goes to prove notice of the dangerous condition and that the location is dangerous. You want to look for similar accidents, so in your case you are looking for single vehicle accidents, as opposed to a sideswipe collision. This information is then verified with a public records request to Caltrans for the same data. The TIMS database is free, and so are public records requests typically. Remember, a court will only consider similar accidents in considering whether accident history is relevant to your case. 

Another thing you and your attorney should do is get public records request from the entity that owns or controls the subject roadway. These public records requests are usually tailored to government entity claims regarding the location, complaints, roadway work and maintenance, along with evaluations done for repair of the subject roadway such as pavement index reports or permit and bidding documents. Lastly, if the case is near commercial buildings or in a residential area, often our firm will hire a private investigator to conduct additional research. Long term business owners or homeowners may have taken pictures of your alleged dangerous condition. Depending on the type of dangerous condition, these business owners or property owners may have also attended City Council meetings and demanded action or emailed the city. There have even been instances where neighbors complained to the city on social media applications like Nextdoor, which can be used. 

Because these types of cases have strict guidelines regarding claim presentation and pleadings it is also advisable to seek counsel to investigate this for you. An attorney can gather this data and advise you of the likelihood of being successful in a dangerous condition case, very quickly. I hope your family continues to heal and you get answers as to what occurred that day for your uncle. 

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What Documents Do I Need if I am Involved in a Car Accident and Need to Pursue a Lawsuit?

Written By Christopher B. Dolan and Taylor French

This week’s question comes from Peter L.  from San Jose: I have been reading some of your articles and they are very informative. I was wondering if you can tell me what type of documents I may need if am ever involved in an accident and if I need to hire a lawyer? 

Thank you for your question and reaching out, Peter. Dealing with the aftermath of a car accident can be an overwhelming experience. Most likely, the last thing on someone’s mind immediately following such a traumatic event is what documents are important or even necessary to obtain in order to pursue a personal injury lawsuit. However, it is extremely important to begin gathering and maintaining the following documents as soon as possible: 

  • Traffic Collision Report

If a police officer arrived at the scene of the collision, the officer mostly likely prepared a traffic collision report. This report contains important information related to the car accident, including the involved parties’ driver’s license and insurance information, descriptions of the weather and roadway conditions, statements from the parties and other witnesses, whether any traffic laws were violated and by whom, descriptions of any reported injuries or property damage, etc. If a traffic collision report was created, either a crash victim or their attorney, if they have one, will need to obtain it from the issuing law enforcement agency. The information needed to request a police report includes the date and location of the incident (this can be an approximate address or an intersection), the names of the parties involved, and the requesting party’s name and address. 

  • Medical Records and Bills

A person injured in a car accident should obtain all medical records and bills for any treatment related to the collision. Depending on the severity and the type of injuries suffered, the individual may need to obtain records related to emergency medical services (i.e., paramedic or ambulance services), emergency room treatment, primary care physician treatment, chiropractic care, physical therapy, pain management, pharmacy prescriptions, and treatment provided by other healthcare specialists. 

  • Photos and Videos

The injured individual should gather all photos or videos taken of the incident scene, the vehicles involved in the collision, and the injuries sustained as a result of the collision. It is becoming increasingly more common for homes or businesses to have security cameras that sometimes capture car accidents, so it is important to obtain this footage if it exists. It is better to act quickly to obtain this footage as it often gets deleted within a short period of time. If a camera is found in the surrounding area, it is important for the crash victim to communicate this information to their attorney so that they can send a letter requesting that the footage be preserved.  

  • Property Damage Estimates

If there is damage to one’s vehicle, as a result of the collision, it is important to maintain copies of any repair estimates, receipts for deductibles paid, and/or other documents related to the repairs. Typically, a body shop making repairs will take photos of the repairs to submit to the insurance companies, so these photos should be requested from the body shop or from the individual’s insurance company. 

  • Records Related to Lost Income

In a personal injury lawsuit, an individual can recover income lost as a result of a car accident. In order to recover the lost income, detailed proof of the claimed losses must be produced. For this reason, it is important to obtain proof of income via paystubs, direct deposit records, or other financial documents, as well as documents establishing how much time was missed from work due to the collision. 

  • Communications Related to the Collision

Following a car accident, it is likely that the parties’ insurance companies will begin to send letters or other communications to the parties. These letters should be maintained and provided to one’s attorney. Additionally, on occasion, a party or witness to the collision will text, call or email an injured party. If this happens, these communications should be preserved as well.

While falling victim to a vehicle collision can be both traumatic and stressful, it is important to try to remain as calm and clear-headed as possible so that all necessary documentation can be obtained. Retaining an attorney will, of course, ease the strain on an injured party following a car accident, but it is still crucial to gather the above documentation in order to prevail in a lawsuit. 

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What Should I Do If I am Involved in an Accident?

Written By Christopher B. Dolan and Allison Stone

This week’s question comes from Remi P.  from the Bay Area: During my commute to work I sometimes see people involved in car accidents. I hope it’s never me, but how should I prepare myself if I’m ever involved in a car accident?

Thank you for your question and reaching out, Remi. Being involved in an accident can be scary, stressful, and overwhelming. It is important to do your best to stay calm and remember the following tips:

Make sure you are safe:

The priority is always your safety. Only exit your vehicle if is it is safe to do so. If you are in the middle of a lane or intersection, turn on your hazard lights to alert other drivers to slow down.

Call the police: 

Regardless of whether it is a major or minor accident, report it and have the accident documented and a report created. 

The police will come to the scene to help make sure the parties exchange information and will make an official report. Even if you think the accident is minor, reporting the accident to the police ensures a record is created, which often provides key evidence in a personal injury claim.

Keep in mind that in some areas and instances, officers may not respond to a minor collision. In the situation where an officer does come to the scene, usually the officer will provide you with an information card which contains what you will need to obtain the report.  But regardless, always make sure to get the officer’s name, badge number and contact information including what department s/he works for (police department, sheriff’s department, etc.), and if there is a report number. 

Obtain contact information from all drivers:

Get all identifying information, including names, addresses, telephone numbers, email addresses, driver’s license numbers and insurance information for any driver involved in the collision. If the collision involves multiple vehicles, obtain all the above information from each driver.

In addition, get all the vehicle information including the year, make and model, color, license plate number and vehicle identification number (VIN) for each vehicle involved. Get the driver’s insurance company’s name, the insurance policy number and the insurance company’s phone number. 

Ask for physical copies of the driver’s registration and VIN number to ensure accuracy. You can simply take photos of the documents with your phone to make the process of collecting this information easier. If the driver’s name does not match up with the vehicle’s registration or insurance, ask the driver what their relationship is to the vehicle’s owner.

Obtain contact information for all passengers and witnesses:

Be sure to get all identifying information, including names, addresses, phone numbers and email addresses of any witnesses, as well as other passengers in any vehicles involved in the collision. These individuals will often have important information that you are not aware of. See if any witnesses will provide you with details about what they saw and heard before they leave the scene.

Take photos to document the scene: 

Use your cell phone camera to take pictures and video of the scene. This includes taking multiple photos of your vehicle, the other vehicle(s), the scene, any traffic lights or street signs, visual obstacles, skid marks, broken glass, and other items on the roadway. Do your best to photograph everything from multiple angles. Get photos that show the position of the vehicles relative to each other and relative to the street/freeway. This is necessary so a person who was not at the scene can look at the photos and understand what occurred, and how the vehicles came to their point of rest, and re-create the collision if need be. Also, photograph any visible physical injuries such as bruising, cuts, abrasions, bleeding, etc.  

Avoid discussing fault:

Regardless of how the accident happened, you should refrain from apologizing or admitting fault for the collision. The insurance company and/or lawyers will collect multiple statements and documents before they come to a determination of fault. Do not to argue with the other driver. Simply limit communication to exchanging information.  

Seek medical attention if needed:

If you were badly injured, call 911 immediately. If someone is taking you to the emergency room before police or paramedics arrive, leave your contact information with someone at the scene.

When the paramedics arrive, let them examine you. 

Remember, due to shock and adrenaline, you may not realize you have been injured. It is human nature to say, “I’m ok” or “I’m fine,” but your injuries may not reveal symptoms immediately and injuries can take several days to present themselves. To avoid having your words used against you later, you can say, “I’m shaken up, I do not know if I am injured and will be seeking medical care and treatment if necessary” or something to that effect.  

If you do not go straight to the emergency room from the scene, see your own doctor as soon as possible because you may have injuries that become apparent later.  

Your health is paramount. Sometimes injuries from accidents can last a lifetime. Your health and medical care should be your priority regardless of who is at fault in an accident. 

Document medical and accident-related details:

Keep track of your medical appointments (doctors’ names, their specialty, and visit dates) and medications. Also keep a record of days missed days from work.

Report the Accident to the California Department of Motor Vehicles:

California law requires traffic accident on a California street/highway or private property be reported to the Department of Motor Vehicles using the SR-1 Traffic Accident Report form within 10 days if there was an injury, death, or property damage more than $1,000. 

If you were in an accident, do not hesitate to contact us for a free consultation at dolanlawfirm.com

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Traffic Collision Reports: What information is in them and who can get a copy?

Written By Christopher Dolan and Casey Hultin

This week’s question comes from William from the Bay Area: My friend rides a motorcycle and was recently injured when he was hit by a car. He believes the police officer who arrived at the scene was biased against him and didn’t even take his statement. He is worried that the police officer found him at fault. Is there some type of report he can get a copy of and if so, who writes them? How can he get a copy of his report? If the report puts him at fault, what can he do? Can he submit a supplemental report? 

Great question William. 

A traffic collision report is a form filled out by the investigating police officer at the scene. The form seeks basic information such as where the collision took place, the names of the people involved along with their contact and insurance information, the vehicles involved, any property damage, and any injuries. It will also generally include a summary of any statements taken at the scene or as part of the investigation, as well as the names of any witnesses interviewed about the collision. There may also be other additional scene investigation information, such as the locations of any cameras that may have caught footage of the incident or measurements for any debris or skid marks. 

To obtain a copy of the traffic collision report, you must qualify as a party of interest in the crash. This generally includes drivers, passengers, vehicle owners, or a parent or guardian of an involved minor. You must complete and sign a request form for the information and provide the date of the collision (or approximate date), collision or incident location (as much information as you have if you do not have a specific address), the name of the driver or owner of one of the involved vehicles, and your name and address. There may also be a small fee. If you are represented by an attorney, your attorney can also help you obtain a traffic collision report. 

If the traffic collision report places you at fault, it will likely make your injury claim difficult to resolve without filing a lawsuit. Insurance companies heavily rely on the traffic collision report when determining who is at fault for claim assessment purposes.   

However, if the traffic collision report places you at fault, that does not mean any claim to injury is doomed. The conclusions in the traffic collision report are often not admissible at trial, meaning that the judge or the jury cannot consider it when deciding who is at fault for the collision. Further, through the litigation process and depositions (questioning witnesses before trial under oath), it is possible to get the officer to walk back the conclusions in the report. For example, often investigating officers do not have the benefit of canvassing for all possible witnesses at the time of the collision because they are dealing with many other competing interests, including making sure any injured people receive medical care and clearing the area for through traffic.

If you find additional information that the investigating officer failed to consider, you can contact that officer and provide the additional information to them. For example, if there is an additional witness the officer missed, you can call and provide that witness’s information so the witness can give a statement. If there are additional photographs, you can send them in as well. If there are inaccuracies in the report, you can point them out. All of these can lead to the officer amending and our supplementing the traffic collision report. You also have the option to get a formal dispute form from the Department of Motor Vehicles in the event the officer is not responding.  

In practice, if the traffic collision report is inaccurate or comes to the wrong conclusion, while you can try to get the officer to author a supplemental report, you are better off navigating the circumstances through an experienced attorney. Especially because, as discussed above, the traffic collision report conclusion is not determinative of fault in a court of law. 

We wish your friend a speedy recovery.  

 

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Are Crosswalks There to Protect Us or Simply Make More Room for Cars?

Written By: Christopher Dolan and Nancy Villatoro

This week’s question comes from Fran in San Jose: I enjoy walking and like to do so as much as possible. If I can avoid having to drive, I will do so and complete some errands on foot. Even when I drive, I don’t mind parking at the end of a parking lot where there is plenty of room rather than circling for a spot that will only save me a few seconds. In my walks I have noticed how restrictive sidewalks can be and how we are herded along crosswalks. Don’t get me wrong, I realize it’s for my safety to use crosswalks, but I can’t help to think that crosswalks are not engineered to protect pedestrians. While waiting for a light to turn green, I have seen some dangerous street corners where only an imaginary line stands between me and a car going 40 mph. One wrong turn or distraction is all it would take for me to get hit by a car. Are crosswalks there to protect us or simply make more room for cars?

Thank you for your question, Fran. You have a good point of view and excellent question. Prior to the 1920s, city streets looked dramatically different than they do today. There were few crosswalks on the street, and they were generally ignored by pedestrians. Streets were considered to be a public space: a place for pedestrians, children at play, similar to a stroll in the park or a walk in the mall. People would move in any direction without really thinking about it. Author Peter D. Norton in the book Fighting Traffic: The Dawn of the Motor Age in the American City (Inside Technology), describes pedestrians as walking “in the streets anywhere they wanted, whenever they wanted, usually without looking.”

As cars began to spread widely during the 1920s, there was a spike in the number of pedestrian deaths. Over the first few decades of the century the number of people killed by cars skyrocketed.

Before formal traffic laws were put in place, judges typically ruled that in any collision, the vehicle was to blame. A movement began to regulate the speed of vehicles to reduce the number of pedestrian deaths. In response, automakers, dealers and car enthusiast groups worked to legally redefine the street.

By the 1930s, most streets were primarily motor thoroughfares where children did not belong and where pedestrians who failed to use the crosswalks were condemned as “jaywalkers.” Cities and downtown businesses began to regulate traffic in the name of “efficiency.” The articles printed in that era shifted blame for accidents to pedestrians, signaling that following the new traffic laws were important.

Today, in California, the driver of a vehicle must yield the right-of-way to a pedestrian crossing a roadway within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(a).) If the driver approaches a pedestrian within a marked or unmarked crosswalk, he or she must exercise all due care and must reduce speed or take any other action as necessary to safeguard the safety of the pedestrian. (California Vehicle Code § 21950(c).) However, a pedestrian is nevertheless responsible for exercising due care for his or her safety, thus cannot suddenly “leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute and immediate hazard.” Additionally, no “pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalks.” (California Vehicle Code § 21950(b).) The duties of the pedestrian do not relieve the driver from the duty to exercise due care for the safety of a pedestrian within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(d).)

Although some intersections and crosswalks can be designed better, crosswalks serve a purpose to keep pedestrians safe while allowing drivers the room they need to travel across city streets. As more people begin to rely less on their cars, more people like yourself will see how we need better designed crosswalks. Continue making your voice heard. You will find you are not alone. 

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Accidents Involving Pedestrians are on the Rise

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from Jordan from Emeryville: As people have started to get out more, I keep hearing about pedestrians being struck by cars. I know this is nothing new but seems to be coming up a lot more lately. Do you know what the trend is, I hope I am just paranoid, and whether or not anyone is doing anything to address the issue, if there is one?  

With the holiday season upon us, and despite the cold weather, people are out shopping and just being out more. With the current status of COVID-19, ridership on public transportation is still down, so those without vehicles, have taken to walking. But unfortunately, you are correct, though not a new problem, accidents involving pedestrians are on the rise. Earlier this year, the Governors Highway Safety Association (GHSA) projected that 2020 had the largest ever annual increase in the rate at which drivers struck and killed pedestrians, and they were correct. 

According to the GHSA the likely culprits are speeding, drunk driving, drugged driving, and distraction, which were rampant on U.S. roads during the COVID-19 pandemic. In addition, the March GHSA report also examined the 2019 FARS data to provide insights on trends regarding these issues. Some of the findings include the following:

  • Pedestrians accounted for 17% of all traffic deaths in 2019, compared to 13% in 2010. While pedestrian deaths have risen by 46% over the past decade, the number of all other traffic deaths has increased by only 5%
  • Drivers struck and killed a larger proportion of pedestrians that were minorities, including Black, Indigenous and People of Color, than expected based on the population. On the other hand, white/non-Hispanic pedestrians accounted for a considerably smaller proportion based on population
  • Most pedestrians are killed on local roads, in the dark and away from intersections. During the past 10 years, the number of pedestrians struck and killed after dark increased by 54%, compared to a 16% rise in pedestrian fatalities in daylight
  • Alcohol impairment by the driver and/or pedestrian was reported in nearly half of traffic crashes that resulted in a pedestrian fatality
  • Although passenger cars make up the largest categories of vehicles involved in fatal pedestrian crashes, over the past decade the number of pedestrian deaths in crashes involving SUVs has increased at a faster rate – 69% – than deaths in crashes involving passenger cars, which increased by 46%.

“Last year was filled with so much death and loss as COVID swept across the country. As America gets vaccinated and returns to normal, we need to treat pedestrian safety like the public health emergency that it is,” said GHSA Executive Director Jonathan Adkins. “We must strengthen our efforts to protect those on foot from traffic violence by implementing equitable and proven countermeasures that protect people walking and address those driving behaviors that pose the greatest risk.”

However, given the wide-open roads that existed following the stay in place order, many drivers have failed to adjust to more people being out and about. “The wrecks that are occurring are at higher speeds,” said Dr. James Augustine, the medical director for emergency medical services in Atlanta, as well as a spokesman for the American College of Emergency Physicians.

To help with this issue, AB43 was introduced by State Assemblymember Laura Friedman out of Glendale, to assist cities struggling to combat pedestrian fatalities. Beginning in 2022, cities will be able to force drivers to slow down on accident-prone streets. AB43 gives cities new authority to reduce limits in increments of 5 mph by factoring the safety of pedestrians and cyclists in traffic surveys. The state’s existing standards set limits based upon certain findings determined by an engineering and traffic survey and on the speed drivers feel comfortable driving at, rather than what’s actually safe.

Unfortunately, while it should be the ultimate duty of drivers to pay attention and follow the rules of the road, pedestrians should be mindful of the hazards and follow a few basic tips: 

  • Increase your visibility at night by carrying a flashlight when walking and wearing reflective clothing, such as reflective vests.
  • Cross streets at a designated crosswalk or intersection whenever possible.
  • Walk on a sidewalk or path instead of the road. Walk on the shoulder and facing traffic if a sidewalk or path is not available.
  • Avoid using electronic devices like earbuds or walking if you have been using alcohol or drugs. They can cause distractions and impair judgement and coordination. 
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