The Burning Questions
Chapel Hill Leads The Nationby J. David Bartenfield on 03/27/12
Chapel Hill has encacted an ordinance banning any use of a cell phone while driving. This is the very first such legislation in the country and will most definitely prevent needless injuries and save lives. As of June 1, 2012 any use of a cell phone while operating a motor vehicle in Chapel Hill is illegal and punishable by a $25 fine.
The question remains is this orinance preempted by North Carolina's own anti-texting statute? Preemption is the argument that North Carolina's legislature has already spoken on this subject by enacting specific legislation regarding the use of cell phones while driving and thus, any local government ordinance is preempted by the State's legislation under a supremacy theory. This preempion challenge is certain to arise very quickly.
Texting While Driving - The Triple Distractionby J. David Bartenfield on 02/18/12
In my career I have represented thousands of automobile accident victims involved in car wrecks that did not have to happen and should not have happened. I have seen more than a fair share of car crashes and the aftermath caused by distracted drivers and I have tried my best to restore the lives of the victims of distracted driving as nearly as our tort laws will allow.
Most of these distracted driver cases can be categorized into one of three separate and distinct types of distracted driving. The three main types of distracted driving I see in my law practice time and again are:
1. Visual-the driver takes her eyes off of the road.
2. Manual-the driver takes his hand(s) or feet away from the wheel or pedals; and
3. Cognitive-the driver is simply not paying attention and not focusing on driving.
I have seen up close the devastation caused when a visually distracted driver searching for a dropped cigarette runs over a motorcycle and its rider. I have seen a manually distracted driver reaching for a map in the glove box direct his vehicle, and his children, down a ravine and into a tree. I have seen a cognitively distracted driver distraught by a recent break-up collide into a mini-van setting it ablaze.
We frequently see car crashes in our travels and are witnesses to the grotesque shapes of motor vehicles involved in car crashes. Part of the responsibility I owe to my clients is answering not only “how” these accidents happened but “why”. It is the “why” that most often keeps me awake. What I most requently discover is that a driver was distracted either visually, manually or cognitively.
Our tort laws have evolved to deal with our human errors by causing the distracted driver to pay damages in an effort to restore the victims’ lives, as nearly as money will allow. It is an imperfect system. Money can never replace lost opportunity and lost lives. Money cannot correct a limp or make the scars go away. And of course, it is most often an insurance company that does the actual paying of money and it is the rare example when the careless distracted driver ever pays directly.
Our current Motor Vehicle Code in North Carolina deals with these three distinct variations of distracted driving with ever evolving “Rules of the Road”. North Carolina law addresses the three main types of distracted driving in several ways, but most prominently by making it law that drivers must:
1. Maintain a proper lookout. This means, simply, keep your eyes on the road and see what you should see. Following this obvious and simple law would have allowed the motorcyclist mentioned above to continue his employment in the United States Air Force.
2. Maintain proper control. This means keep your hands on the wheel. Following this rather obvious rule would have prevented a ride down a ravine and the facial scarring of a seven year old girl.
3. Operate a motor vehicle using reasonable care. This means if your mind is on something else that prevents you from concentrating on driving, then don’t drive. Following this simple rule would have prevented a high-speed head-on collision and the broken ankles of a retired grandmother.
Now there’s a new and awful distraction that is all around us and growing exponentially. The prevalence of text messaging and the number of text messages sent is doubling every several years. I have witnessed in my law practice a surge in distracted driving cases that has rapidly outpaced drunken driving as the number one needless cause of death and injury. It is the Super Distraction and combines all three of the main types of distraction, visual, manual, and cognitive into one giant attention monster that competes for immediate action like nothing before it.
Lawmakers are watching closely and shaping laws all over the world to deal with the super distraction text messaging has become. These are links I have collected to a few of the most recent strategies of lawmakers in dealing with what I believe to be the single most dangerous hazard of operating a motor vehicle today: text messaging. The law is continuing to evolve and playing catch-up with statistics that are accumulating faster than legislation can be introduced. On September 30, 2009 President Obama issued an executive order prohibiting federal employees from texting while driving on government business or with government equipment. On December 1, 2009 North Carolina anti-texting legislation became effective. On October 27, 2010, the Federal Motor Carrier Safety Administration enacted a ban that prohibits commercial vehicle drivers from texting while driving.
The Center for Disease Control and Prevention (CDC) is also watching and accumulating terrifying numbers.
· Each day, more than 15 people are killed and more than 1,200 people are injured in crashes that were reported to involve a distracted driver.
· In 2009, more than 5,400 people died in crashes that were reported to involve a distracted driver and about 448,000 people were injured.
· When asked whether driving feels safer, less safe or about the same as it did five years ago, more than 1 in 3 drivers says driving feels less safe today. Distracted driving, cited by three out of ten of these drivers, was the single most common reason for feeling less safe today.
· 25% of drivers report that they “regularly or fairly often talk on their cell phones while driving”.
· 75% of drivers 18 to 29 reported that they talked on their cell phone while driving at least once in the last 30 days, and nearly 40% reported that they talk on their cell phone “regularly” or “fairly often” while driving.
· 9% of drivers in the United States reported texting or emailing “regularly” or “fairly often” while driving.
· 52% of U.S. drivers ages 18 – 29 reported texting or emailing while driving at least once in the last 30 days, and more than 25% reported texting or emailing “regularly” or “fairly often” while driving.
North Carolina has enacted anti-texting legislation but is it enough? Here is our anti-texting legislation. Is the threat of a $100 fine enough to rein in the Super Distraction text messaging has become? I don’t think so. My research has indicated that only a handful of individuals have been prosecuted under North Carolina’s anti-texting measures and the North Carolina Highway Patrol has stated that enforcement is difficult because of the near impossibility of determining whether a driver is illegally sending a text message or legally dialing a telephone number.
In my opinion text messaging is quickly on the verge of becoming the new DWI. In the very near future I expect to see our sluggish legislature respond to the increasing documented connection between cell phone use and car crashes by following a New York type model that full out bans the use of cell phones and portable electronic devices by drivers.
One possible alternative to an all-out ban on cell phone use by drivers would be to add some teeth to our current legislation. This could be done by allowing victims of text messaging related accidents to claim punitive damages. This would in turn cause liability insurance companies to increase the insurance premiums of offending drivers and eventually make it difficult for repeat offenders to afford to drive at all.
Have you or someone you know been injured in a car crash by a driver suspected of texting? Do you think our current legislation in North Carolina is sufficient to control the problem of drivers distracted by cell phones? Do you believe there is a problem at all? Do you text while driving and how frequently? Do you have ideas or suggestions that you would like to see made law to address the growing problem of distracted driving? I would love to hear your thoughts and opinions in my blog.
How Can A Lawyer Help?by J. David Bartenfield on 02/15/12
If you have been injured in an accident I have three primary goals for you.
- Answer your questions and put you at ease.
- Get you healthy.
- Maximize your settlement.
I can help you get the medical treatment you need by finding the right doctors for your injury. Insurance companies do not pay for medical treatment in advance of settling your case. This means you will incur unexpected medical costs and out of pocket expenses. I can help by answering questions regarding health insurance and medicaid or medicare coverages. If you do not have health insurance I can help you find doctors that will provide the medical treatment you need now and wait until your case is settled for payment. If you do not get the medical treatment you need and "tough it out" the insurance company will use the absence of medical treatment against you to deny your claim.
The goal of the insurance company is to pay you as little as possible. The insurance company has many lawyers working for them whose only goal is to defeat your claim any way possible. A 2004 study by the Insurance Resource Council determined that injured people recovered 3 1/2 times more when they were represented by a lawyer. I want to make sure you get compensated fully for every claim you have in a fair fight.
The laws applicable to personal injury claims are complex. One mistake and your case can be ruined. The insurance company has lawyers and so should you. You do not have to face this fight alone. I am happy to discuss your case with you and help you get the maximum settlement you deserve.
Can You See Me (and my bike) Now?by J. David Bartenfield on 02/03/12
Although a collision with an automobile is the greatest hazard cyclists face, there's one reassuring bit of news: the fact is, it's a relatively uncommon occurrence. Most accidents are in fact solo accidents involving a defect or some hazard on the road or trail. Additionally, in most accidents, whether involving a defect or an automobile, the rider is a child.
In North Carolina a bicycle used at night must be equipped with a headlamp visible from a distance of 300 feet.
The light at night requirement is to make the cyclist visible to automobile drivers at night, not to light the cyclist's way. It does not insulate against collisions with automobiles but improves the visibility of the cyclist.
Automobile insurance companies like this law and here's why: If a cyclist without a headlamp is involved in a collision with an automobile at night, the insurance company can and will deny an injury claim asserted by the cyclist by claiming the cyclist was contributorily negligent (more on that next time) regardless of the negligence of the automobile driver.
Are you a student commuting by bicycle at night without a headlamp? We Want To See You! CLICK HERE to get a free headlamp for your bicycle compliments of Bartenfield Injury Law.
Lamps on Bicycles. – Every bicycle shall be equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least 300 feet in front of such bicycle, and shall also be equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions from a distance of at least 200 feet to the rear of such bicycle, when used at night.
Can Words Kill?by J. David Bartenfield on 01/30/12
Close your eyes for five seconds and count...
One one thousand
Two one thousand
Three one thousand
Four one thouand
Five one thousand
That is the average amount of time it takes to send, or receive and read a text message.
At 55 mph you've just traveled the length of a football field.
In North Carolina it's not only against the law to send a text message while driving but it's also against the law to read a text message while driving. It's illegal to check your email or check-in to Facebook, Twitter, Four-Square or Linked-In while operating a motor vehicle.
Although exact statistics are not available, AT&T, the country's second largest cellphone carrier, estimates 200,000 accidents a year are attributable to texting while driving. These statistics are difficult to obtain because most people involved in car crashes are unwilling to admit that texting while driving caused or contributed to the accident. And unlike car crashes involving alcohol there is no tell-tale odor or measurable intoxication alerting officers.
And in many of these cases the offenders are dead.
So, yes. Words can kill.
Don't text and drive.