The Burning Questions
Chapel Hill Leads The Nation
by 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 Distraction
by 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.
