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Autonomous Vehicles – Future Predictions, Part II

-Will autonomous vehicles disrupt personal injury practice?

 

This is the second article of a series on the changes that the advance of self-driving cars are predicted to bring about to the automotive industry and related businesses. To read how autonomous vehicles are predicted to change the insurance industry, please read the previous article.

 

Ultimately safer, though accidents happen

When it was disclosed last year that a Tesla Model S car driving in the Autopilot mode was involved in a fatal crash, the question on everyone’s mind was: “Can the Tesla Motors company be held liable for the accident?”. Enthusiasts of autonomous driving technology likely held their breath when the National Highway Traffic Safety Administration, NHTSA, announced that it was opening a preliminary evaluation into the performance of the Autopilot to establish whether it could have been responsible for the crash. Indeed, the stakes were high and possible ramifications for the future of self-driving cars may have seemed daunting. If this incident was going to be brought before a court of law, it would become a first impression issue – a court case without any existing precedent that would set precedent for future cases. If it were established that the Autopilot system had, indeed, caused the crash, public perception of AI vehicles would likely be dramatically influenced and could potentially contribute to a considerable slowdown in the advancement and proliferation of the technology.

The NHTSA investigation lasted for 8 months and in the end, it was determined that the Autopilot mode was not responsible for the crash due to any software malfunction or design fault. The Tesla vehicles with an Autopilot system were not to be recalled, and no other legal ramifications were going to result from the incident. The Tesla company and Elon Musk, its CEO, could heave a sigh of relief, along with other enthusiasts of autonomous driving technology.

For now, the Tesla fatal crash remains an isolated incident. There have been other collisions involving self-driving cars run by Google and Uber, but with no serious injuries or damage. Google autonomous vehicles boast a rather impressive record of having completed almost 2 million miles since the project was initiated, with only 14 minor collisions, such as rear-end crashes, out of which the Google car’s software was responsible for only one. In fact, if autonomous cars become widespread on US roads, the number of accidents could drop by 90%, according to one report. Nevertheless, a universal adoption of driverless vehicles would not eliminate accidents completely. In a world where robot cars are the norm, some of the crashes will be caused by bad decisions made by computer software. In turn, these kinds of situations will call for completely new paradigms in personal injury law. The present article, the second in the series on the impact of the advance of autonomous vehicles, analyzes what may change with regard to fault and liability issues once AI cars truly hit the roads.

Car-crash personal injury claims today

To understand how personal injury cases related to car crashes may change in the future, we first need to be aware of how such cases proceed today. A personal injury claim starts with an injury, damage, or a loss, most likely caused by a person’s negligence. For example, a car was rear-ended by another vehicle whose driver exhibited negligence by failing to exercise sufficient caution; or a car was t-boned by another car that did not yield the right of way. In both of those cases the negligent driver was clearly at fault and thus the injured party asks the at-fault party to take the responsibility for the damage. The at-fault party should then contact its insurance company to check if the damage is covered by the policy they own and what the cash limit of a potential claim is. Usually, the insurance company will investigate the extent of the damage and offer the injured party a cash settlement. The injured party has the right to accept or refuse the offer. In the case of a refusal and a failure to achieve any other settlement, the injured party may ask their personal injury attorney to evaluate the case. If the attorney thinks the claim has merit, they may speak on behalf of the injured party to the insurance company. If further attempts to renegotiate the claim with the insurance company prove ineffective, the case will most likely be settled in the court of law.

Shifting paradigms

How may this process change with a wide adoption of autonomous vehicles? The central issue in most personal injury cases today is negligence liability. The at-fault driver is liable for the damage or injury because they displayed negligence – a failure to act with the sufficient level of care. But who will be found negligent, and thus liable, in an accident where there was no human driver? The automaker? The software company? The manufacturers of various subcomponents that allow the car to drive in autonomous mode, such as cameras, ultrasonic detectors, or lidars? There is no easy answer to that question. As one lawyer has put it: “You’re going to get a whole host of new defendants. Computer programmers, computer companies, designers of algorithms, Google, mapping companies, even states. It’s going to be very fertile ground for lawyers”. In any case, it is very likely that the process of proving fault after an accident may become much more complicated than it is now, especially because under the current law, in personal injury claims, there is little room for blaming the manufacturer of the car. If a driver wants to do that, they need to prove the negligence on the part of the automaker under the product-liability law. As we hinted in the previous articles in this series, however, product-liability does not stipulate for driverless cars yet. As David Strickland, former head of NHTSA, noted: “There’s going to have to be some changes to the laws. There is no such thing right now that says the manufacturer of the automated system is financially responsible for crashes”.

Self-driving car manufacturers are already hinting at their approach to liability in crashes involving autonomous vehicles. Google, Mercedes, and Volvo have declared that they will accept full liability whenever one of their cars driving in autonomous mode is involved in a crash, although some attorneys dismiss such claims as marketing ploys. On the other hand, Elon Musk, Tesla’s CEO, has said that the company will not be responsible for such accidents unless caused by a fault “endemic to our [Tesla’s] design”. Musk compared the issue of liability in an AV crash to an elevator accident. “Does the Otis [an elevator manufacturer] take responsibility for all elevators around the world, no they don’t”, he noted. In the case of an elevator accident that results in a personal injury claim, it is possible that a company responsible for elevator maintenance or the property owner will be found liable. Now, autonomous cars’ software rely on external visual indicators such as lane markings, traffic lights, or road signs while making some traffic-related decisions. If those indicators are not clearly visible and an AV causes a crash, it might just as well end up in a negligence claim against, say, municipality for a failure to exercise sufficient care for the state of local roads.

Can personal injury practice come out unscathed?

The problems and examples mentioned above clearly show the need for new laws and regulations. Although NHTSA has already released self-driving car guidelines, the individual states still need to develop uniform policies for autonomous vehicles, and many unsolved issues will probably find their answers in the course of specific cases settled in the courts once the AVs become the norm. The change, however, is inevitable. Therefore, the question is, will personal injury lawyers find themselves out of business with the advance of driverless cars? According to one specialist, “personal injury attorneys would see car-related cases all but disappear”. One attorney even advised law school graduates not to choose personal injury as the field they plan to practice because autonomous vehicles will “eviscerate a significant portion of the personal injury bar”. Nevertheless, attorneys deal with many different types of personal injury claims, so the drop in motor vehicle crash-related claims may not be as devastating for attorneys as it can be for the car insurance industry. Moreover, as some attorneys point out, it will not be the first time that legal practice changes and the practitioners will most likely adapt to yet another shift.

Final thoughts

As we mentioned in the previous article, autonomous vehicles can be regarded as an example of disruptive technology, with considerable, even paradigm-shifting, impact on the automotive industry and many related industries. Insurance companies will likely see a huge decrease in profits as premiums get lower due to fewer accidents. Similarly, personal injury practice will change with the issue of negligence liability possibly shifting from individuals to manufacturers or other third-parties. It is nearly impossible to foresee all of the complex consequences the advance of self-driving cars will bring about. In this shifting, unpredictable ground, one thing is certain – the change is underway. There is only one thing the various industries and business set to be influenced by that change can do – brace for impact.

Autonomous Vehicles – Future Predictions, Part I

What the Arrival of AI Vehicles Means to the Insurance Industry

 

Disruptive innovations

When the very first Ford Model T automobile left the factory in Detroit, MA, on September 27, 1908, a car was hardly a revolutionary innovation anymore. In fact, before the Model T, “horseless carriages”, as automobiles were sometimes called at the time, had been around for decades. Automotive industry could already boast some technologically sophisticated and aesthetically pleasing machines, for example, the luxury Rolls-Royce Silver Ghost model, whose production began two years earlier. However, it was the Model T that became a true game-changer for the industry, a breakthrough that opened the world of cars to the masses and “put the world on wheels”, as it were. In little under 20 years, the Ford Motor Company sold 15 million Model T cars; as of 2012, it still was one of the 10 best-selling cars in the history of the automotive industry.

While it is true that the Model T became the first affordable automobile and as such created a whole new market for relatively easy to obtain cars, its impact on the society as a whole was even more far-reaching. For example, more people having cars meant that government earned more from taxes on gasoline – and that money was in turn invested into infrastructure. Moreover, more cars on the roads inevitably translated into more collisions. Although the first car insurance policies were being sold already by the end of the 19th century, they were neither obligatory nor widely bought. Thus, even if the at-fault party could be determined in the case of a car crash, many drivers were not able to cover the liabilities. To tackle that situation, many states started adopting legislation that evolved into compulsory insurance laws and gave rise to the US personal automobile insurance market. This market now generates more than $220 billion in annual revenue, accounts for more than 277,000 jobs, and is responsible for almost 40% of the financial sector’s GDP.

The car insurance business was brought about by what some scholars call a disruptive innovation. In broad terms, this can signify an invention “whose application significantly affects the way a market functions”. As outlined above, this is precisely what the Model T did to the auto market. Ironically, it is likely that in the years to come the very same industry that gave rise to car insurance companies may, in effect, become their undoing. All of that thanks to another disruptive innovation within the automotive market that in recent years has been steadily gaining momentum. In one of our recent posts, we hinted at some of the revolutionary changes that the advance of autonomous cars is predicted to cause not only to the automotive industry but also to other parts of the economy. This and the following post in this series will analyze in more detail how driverless cars may change insurance industry and personal injury paradigms.

Headed for extinction?

If anyone should have an opinion about how autonomous vehicles will change the insurance industry, it is likely to be Warren Buffet. The American business magnate and investor leads Berkshire Hathaway – a conglomerate holding company which owns GEICO, the second largest auto insurer in the US. Indeed, in February, CNBC interviewed Buffet on the subject of what changes self-driving cars are likely to bring about once the technology truly hits the market. The opinion the magnate gave was anything but optimistic for insurance companies. Buffet said that the advance of autonomous vehicles will “hurt GEICO’s business very significantly”. He also added that if driverless cars are safer, it will cut the insurance costs and “that brings down premium buy significantly”. How exactly could this scenario play out?

Today, insurance companies make the majority of their profit on premiums. How high the premium depends on many factors, but generally speaking, it is related to the likelihood of a damage claim being made, in other words, how likely it is that a driver will have an accident in which they may be found to be the at-fault party. Thus, insurance rates are calculated based on previous claims history, driving records, and other details related to the driver. Now, autonomous vehicles can change that in a two-fold way. First, as Warren Buffet noted, self-driving cars are predicted to be much safer. Vehicles already equipped with some level of autonomy seem to confirm that prediction. For example, since Tesla Autopilot mode was first installed in 2015, crash rates for Tesla cars dropped by 40%. The Autopilot is considered to display the so-called “Level 2” in the 5-level scale of driving autonomy. Level 2 signifies partial automation that still requires a human driver to be paying constant attention to the road. Level 5, once it is reached, will mean that a car’s automated system is capable of fully controlling the vehicle on all roads and in all conditions. Currently, two companies – Google and Ford – are trying to develop Level 5, fully self-driving cars. Ford has already announced plans to introduce a whole fleet of cars without steering wheels or gas and brake pedals by 2021. Considering that today human error is estimated to be the cause of at least 90% accidents, this will likely mean a huge improvement in traffic safety. According to many, safer cars should entail lower insurance premiums and this translates into lower revenues for the insurance companies. Because of this one change alone, the personal auto insurance industry is predicted to decrease by 40% in the next 25 years, or even by 60% according to some estimates.

Where will the liability lie?

The second way driverless cars are predicted to change the insurance industry has to do with liability and personal injury claims. Although autonomous vehicles will almost certainly be safer, this does not mean that accidents will not happen; it only means that whatever incidents will occur, a human driver will no longer be at fault. The question, then, is: who would be found liable in the event of a self-driving car accident? There is more than one answer to this question. One potential solution to this issue can be found in what is called a strict liability regime. According to one definition, strict liability “imposes legal responsibility for damages or injuries even if the person who was found strictly liable did not act with fault or negligence”. Today, strict liability is applied, for example, to injuries caused or related to a product’s manufacturing defects. In the case of autonomous vehicles, however, strict liability would mean that the responsibility for the crash would be automatically placed on the owner of the vehicle. This scenario, though, assumes that the proliferation of self-driving technologies will not affect private car ownership. It is not unlikely, however, that autonomous vehicles will be owned and operated in fleets by manufacturers themselves or by third-party companies. Could corporations like Google or Ford automatically assume responsibility for crashes where their vehicles will be involved?

The answer, simply speaking, is yes. In fact, Google, Volvo, and Mercedes have already issued statements to the effect that they will self-insure their cars and accept full liability in the case of accidents in which their car was driving in autonomous mode. Tesla seem to be heading in a similar direction, judging by their plan to include the cost of insurance in the final price of the car, a model that the company has been experimenting with in Asia.

Changing models

Does all of this mean that car insurance companies are headed for extinction? Not necessarily. Self-insurance models that Google, Volvo, and Mercedes are vowing to adopt may encounter some opposition both from within the AI vehicles industry and from the general public. Why? First, self-insurance may be costly. Smaller companies, especially innovative start-ups, will most likely be unable to afford to self-insure their products and thus may still want to turn to insurance companies. Second, as one Forbes’ article points out, manufacturers that will self-insure may “censor” some of the routes, that is to say, prevent that their vehicles from entering certain areas based on perceived risk of an accident. This idea may not sit well with the general public, so, independent insurance companies may still have a vital role to fulfill in a world in which autonomous vehicles take over.

As mentioned earlier, another area on which self-driving vehicles are likely to have considerable impact is personal injury paradigms and laws. Our next blog post will analyze how autonomous vehicles may affect personal injury cases and potential legislation in that regard.

What the Future of Autonomous Vehicles Really Looks Like

Kiley Law Group, LLC

While big car manufacturers announce plans to deploy self-driving cars in the near future, smaller technology companies are already operating autonomous fleets in US cities

 

Making inroads into Boston traffic

Self-driving cars and autonomous vehicle technologies are for many, one of the most exciting advancements at the modern-day frontier of innovation. Robotic cars not only are making headlines with impressive frequency these days but also are becoming a part of actual day-to-day traffic in more and more places around the world. In addition to Google, whose driverless cars famously have completed almost 2 million miles since the project was born in 2009, Uber launched its self-driving fleet, operating in Pittsburg, PA, in August last year. That same month, nuTonomy, an MIT-spinoff startup company based in Cambridge, MA, introduced first-in-the-world autonomous taxi services to the streets of Singapore. Last January, we reported that the same company was greenlighted to start testing their autonomous vehicle system in the Flynn industrial park area in South Boston. After completing more than 200 miles of test drives, the company now feels it is ready for a bigger challenge – expanding their self-driving car operations to the city’s busier zones that include the Seaport District and Fort Point area. As the company announced on Tuesday, April 25, Boston city transportation officials conceded to the proposal meaning that Boston residents may shortly expect to see more cars with the nuTonomy logo on the streets.

The positive decision of the city officials does not come as a surprise considering the nuTonomy cars impeccable safety record in the first phase of testing. As the company’s official report explains, the vehicles completed 230 miles without any collisions or unanticipated failures. The safety drivers, who were present in the cars at all times, and prepared to take over manual control should any unexpectedly dangerous situation occur, did have to intervene in some, albeit a limited number of, situations. However, the circumstances in which such takeovers happened were related to other drivers’ erratic behaviors rather than some inherent deficiency of the vehicles’ systems.

Unique place, unique obstacles

The company also stated that the test drives allowed them to refine their software thanks to the challenges posed by real-life traffic situations that would have been difficult to anticipate otherwise. An interesting example includes the system’s reaction to seagulls. Apparently, the cars struggled to respond appropriately to seagulls that often flock the roads in South Boston in wintertime. However, software adjustments were made so that the systems could recognize the birds and adjust the behavior of the car accordingly. As nuTonomy CEO Karl Iagnemma noted, this and similar situations showed that each setting to which autonomous vehicles are introduced brings new challenges and the systems always need to be adapted to local conditions.

The next phase of the tests will certainly bring more unexpected challenges. The cars’ systems will have to face substantially heavier traffic and road features such as bridges, lights, and a rotary. Moreover, some of the routes the cars will take are located close to certain tourists attractions such as the Children’s Museum. These places are frequently visited and the resulting pedestrian traffic which is unpredictable by nature may give rise to potentially dangerous situations. However, both the city officials and the Museum’s representative are confident and optimistic about the safety of the next phase of the tests. Additionally, Iagnemma is positive that the new round of test drives “will allow the sophisticated autonomous vehicle software system we’ve pioneered to quickly adapt to Boston’s complex driving environment.”

The driverless revolution – concerns and counterarguments

Managing the above-mentioned complexity of real-life traffic as well as seemingly infinite driving scenarios is arguably one of the greatest challenges to the advance of truly autonomous vehicles. However, the obstacles do not discourage the big players of the automotive industry to continue showing interest and invest money in driverless vehicle solutions. Last year, companies such as Audi, Ford, BMW, GM, and Volkswagen announced bold plans to launch self-driving vehicles within the next five years, which makes the proliferation of the technology seem inevitable.

On the other hand, not everyone is showing unrestrained enthusiasm for the fact that this advancement is making inroads into our daily lives. Some people are concerned that autonomous vehicles may not be safe enough to entrust them with human lives – not only of their passengers but also of everyone else involved in traffic situations. Such fears were fuelled last May by a fatal accident involving a Tesla car running on the Autopilot mode. However, a formal investigation into the accident conducted by the US National Transportation Safety Board, NTSB, concluded that the car’s system was not at fault but rather it was the driver’s abuse of Autopilot mode that ultimately led to the collision. Moreover, the report stated that after Tesla cars were updated with the Autopilot Technology, the crash rate dropped by almost 40 percent.

This report has not been the only source which suggests that the assertion that autonomous vehicles are unsafe is based more on misconceptions than facts. Actually, the data available on the use and impact of the already existing AI-assisted driving technologies predict that self-driving cars would make the roads safer. It has been reported, for example, that if solutions such as forward collision warning, lane departure warning, and blind-spot monitoring were universally employed in the US, the number of fatal crashes would drop by 10,000.

Nevertheless, the rise in popularity of autonomous vehicles will have a notable impact on society as a whole and is likely to create some social and legal issues. As The Economist magazine suggested last year, one of the issues raised is the question of liability. In rare cases where a car’s AI will commit an error leading to a car crash, it will most likely be the manufacturer held liable. The manufacturer, however, may try to prove that the blame lies with a component supplier and so on, which may result in prolonged and inconclusive lawsuits. On the other hand, the article mentions that, because of the overall decrease of accidents, the motor insurance market is predicted to become 60% smaller by 2040. Those insurance companies who want to survive the drastic change of the automotive industry will need to adapt to the new circumstances and adopt new business models that these inevitable changes will require.

According to many, self-driving cars have the potential to be an innovation that will revolutionize transportation across the globe and will potentially impact many other industries. Some of the ramifications of the advancement of this technology are hard to predict. Therefore, pilot programs, such as the one being conducted in Boston by nuTonomy, are vital to anticipate and minimize any negative effect that a widespread adoption of autonomous vehicles may cause in the years to come.

OSHA Issues Citations For 18 Regulation Violations That Resulted in the Death of Two

Kiley Law Group, LLC

Atlantic Drains is facing fines close to $1.5 million as its owner pleads not guilty to manslaughter charges

According to Occupational Safety and Health Administration, OSHA, each year in the US more than 800 construction workers lose their lives while performing their job. As the agency points out, one of the most hazardous types of construction work is trenching. According to various statistics, between 40 and 70 workers die each year in trenching-related accidents. Most of those accidents are due to cave-ins, which also means that they are preventable if necessary precautions and safety measures are in place.

Sadly, last October, a failure to provide such measures led to the death of two construction workers in Boston. Kelvin Mattocks, 53, and Robert Higgins, 47, were digging a 14-foot trench on Dartmouth Street, in the South End area of Boston, when a burst pipe and subsequent flooding of the trench resulted in a cave-in. According to witnesses, the workers had no chance to escape.

Kelvin Mattocks

Robert Higgins

Information provided by OSHA states that “one cubic yard of soil can weigh as much as a car, nearly 3,000 pounds” – therefore, cave-ins such as the one described above usually take a deadly toll. OSHA regulations specify that all trenches deeper than 5 feet, unless they are cut into solid rock, must be protected against cave-ins and that it is the responsibility of the employer to provide such protection. Mattocks and Higgins worked for the Atlantic Drain Service Co, a company that has an unfortunate history of occupational safety violations. Atlantic Drain have been fined twice in the last 10 years – in 2007 and 2012 – but have failed to pay the fines. OSHA labeled the company a severe violator and placed it in a program for “recalcitrant employers that endanger workers by committing willful, repeat, or failure-to-abate violations”. The program required the company to provide its employees with special training. How is it possible, then, for such flagrant negligence on the part of Atlantic Drain to have recurred, this time leading to the above-mentioned tragedy? According to Suffolk District Attorney prosecutors, the company falsified documents certifying that the employees attended the training when in fact they had not. Commenting on this fact in February, Suffolk District Attorney Dan Conley said: “That isn’t an accident. That isn’t negligence. That’s wanton and reckless conduct, and we believe it cost two men their lives”. He also announced that both the owner of Atlantic Drain, Kevin Otto, as well as the company were charged with two counts of manslaughter. The company’s owner declined to comment at the time but he pleaded not guilty to the charges.


“That isn’t an accident. That isn’t negligence. That’s wanton and reckless conduct, and we believe it cost two men their lives” – Dan Conley


As the company has been previously cited by OSHA for the same conditions that resulted in the tragedy on Dartmouth Street, this time the agency is taking more decisive action. Earlier this month OSHA’s New England Regional Administrator stated that Atlantic Drain was being cited for 18 violations for which penalties amounting to $1,475,813 were proposed. Penalties so high are uncommon in New England – in the past 20 years there were only two cases in which proposed fines exceeded $1 million, according to Ted Fitzgerald, Regional Director for Public Affairs of the US Labor Department. The reason for very high penalties in the case of Atlantic Drain is that it is believed the violations were willful and repeat. Indeed, in the official ‘Citation and Notification of Penalty’ document issued by OSHA, only one violation is classified as other-than-serious. The rest were found to be either serious, willful, or repeat. The document mentions, among others, the following violations:

  • failure to initiate and maintain safety inspections of the site, materials, and equipment
  • failure to provide the employees with training in the recognition and avoidance of unsafe conditions
  • failure to provide sufficient means of egress corresponding to the circumstances of the work site∗
  • failure to provide a support system for the trench, such as shoring, bracing, or underpinning
  • failure to excavate the trench according to safety regulations – the angle of the excavation was too steep and therefore hazardous

The cause-and-effect link between the violations and the tragedy that occurred seems to be self-evident. According to Galen Blanton, OSHA’s New England Regional Administrator, “The deaths of these two men [Mattocks and Higgins] could have and should have been prevented. Their employer, which previously had been cited by OSHA for the same hazardous conditions, knew what safeguards were needed to protect its employees but chose to ignore that responsibility”. It can be only hoped that the strong stance and decisive action, taken both by OSHA and the prosecutors will become warning examples for other construction companies to revise their safety practices so that tragedies like the one that occurred on Dartmouth Street last October do not make the news anytime soon.

∗In case of trenches deeper than 4 feet, the employer is obliged to provide a ramp or other exit so that the workers do not have to make “more than 25 feet of lateral travel” trying to exit the trench

The Psychological Link Between Overcrowding and Road Rage

What a 1960’s experiment on mice can teach us about the causes of road rage incidents

A stray bullet

According to a 2014 survey on road rage conducted by AutoVantage, a roadside assistance company, Boston is one of the five least courteous cities when it comes to motorists’ behavior and attitudes. The driver of a Columbia Gas of Massachusetts company pickup truck, whose windshield was hit by a stray bullet in what appears to be a road rage incident last month, would likely agree with that assessment.

As the victim and other witnesses report, on Wednesday, March 29, around 8:30 pm, two cars – a dark-colored SUV and a light-colored 4-door sedan – were seen “operating erratically” and “jockeying for position” near the intersection of Turnpike Street and Foundry Street. Shortly before, the Columbia Gas driver was heading west down Route 106. According to Easton Deputy Police Chief Keith Boone, when the driver turned onto Turnpike Street, “a stray bullet struck his windshield”. Fortunately, apart from an understandable shock, the unnamed victim was left unscathed by the incident. Although no other victims or damage were reported, the situation is being investigated as a  potential road rage incident.

The event described above is by no means an isolated occurrence; rather, it is yet another manifestation of a common problem that affects most American big cities. In fact, in a study conducted by the AAA Foundation for Traffic Safety in 2014, 8 out of 10 US drivers reported engaging in an angry or aggressive behavior. For example, 25 percent of drivers admitted to trying to purposefully impede other drivers from changing lanes; 12 percent acknowledged they had cut off another driver. Why, then, are such behaviors so prevailing? What are the causes of road rage? How can drivers assure their safety and avoid situations that may give rise to road rage?

A legal viewpoint

In order to better understand the problem, a comprehensive definition of what constitutes behavior described as road rage seems to be necessary.  It is interesting to note that the National Highway Traffic Safety Administration, NHTSA, makes a distinction between aggressive driving and road rage. The former happens when “an individual commits a combination of moving traffic offenses so as to endanger other persons or property”; the latter is defined as “an assault with a motor vehicle or other dangerous weapon by the operator or passenger(s) of another motor vehicle or an assault precipitated by an incident that occurred on a roadway.” The distinction is crucial and consequential – while aggressive driving is merely a traffic offense, road rage is a criminal offense. Nevertheless, only about 20 states have enacted laws referring specifically to aggressive driving.

Psychological explanations

The psychological perspective on road rage reveals that this type of behavior can be a response to various complex emotional triggers and mechanisms. For example, one study explains that aggressive behavior on the road may be a reaction to a perceived invasion of one’s personal space. In this interpretation, a car is treated as an extension of such personal territory and those who proximally threaten it are viewed as aggressors. Thus, a threat will be met with a defensive act that aims at affirming personal space. The same study argues that one’s car is also viewed as a symbolic extension of one’s ego and a powerful “statement of self”. This would explain why situations of conflict on the road escalate so quickly and tend to provoke strong emotions.

Moreover, psychologists often explore the link between overcrowding and incidents of road rage. In this scenario, aggressive behavior on the roads would be a manifestation of a much bigger problem, that is, crowding is correlated with aggression and violence. Those who advocate this explanation often cite a study on overcrowding originally conducted on mice in the 1950s and 1960s by an American ethologist and behavioral researcher John B. Calhoun. In his experiments, Calhoun created an environment for mice in which all essential resources were abundant – except for space. When the population reached a critical point, mice started exhibiting a wide range of pathologies that included violent and aggressive behavior, even though needs of all of the individual specimens were still being satisfied. Some researchers think that the same problem is currently being manifested in big cities all over the world. Although conclusive evidence is still lacking, it has been noted that “very slow or stationary traffic situations” – that is to say, situations in which overcrowding is most perceived – “present typical conditions in which driver aggression can be allowed to reach detrimental levels”.

The remedies

Whatever the causes are, road rage seems to be a common phenomenon that every driver needs to be prepared for. What are, then, the safest way to act when confronted with a furious driver? Here are some useful tips:

  • avoid escalating the conflict – for example, if being tailgated, change lanes
  • do not retaliate – do not return gestures, or shout back insults
  • do not make eye contact as this may be interpreted as confrontational and aggravate the situation
  • if confrontation seems to be inevitable, pull off the road or take the nearest exit

The drivers who themselves are prone to overreact when faced with stressful situations on the road should find ways to reduce their anxiety levels and control their emotions.

Truck Accidents and You

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Truck accidents are scary and can be complex to face alone. Let Kiley Law Group help you; we change people’s lives for the better.

Massachusetts is a hub for production and distribution, with ports accessible for shipping via water, air and land. Semi-trucks are common fixtures on our highways and roads, and most people learned to share the road with large trucks when they obtained their licenses. Unfortunately, sometimes even the best prepared drivers can be involved in traffic accidents involving other motor vehicles, motorcycles and semi-trucks.

When dealing with motor vehicle or motorcycle accidents, you’re (hopefully!) dealing with individuals with their own insurance who aren’t beholden to a large corporation or chain of command that may limit or even circumvent your ability to receive the compensation you deserve. Dealing with trucking companies is a horse of a different color.

There are significant differences between handling an interstate trucking case and other car wreck cases. In many cases, semi-trucks are the property of the company of which the driver is an employee or contractor. For example, in most cases, Wal-Mart trucks are owned by Wal-Mart, the drivers are employed by Wal-Mart; after an accident, you’re dealing with Wal-Mart’s insurance. While there are individual owner/operators for semi-trucks, nearly 90% of semi-trucks on the road are owned by larger corporations.

In order to successfully resolve an accident involving a semi-truck, it is imperative to have knowledge of the Federal Motor Carrier Safety Regulations, technology, business practices and insurance coverages, and have the ability to discover written and electronic records. Trucking companies almost always send accident investigators to the scene of a truck accident to limit their liability. As a regular citizen without a Fortune 100 insurance company and big budget behind them, this process may be daunting. Consulting with an attorney with knowledge of truck accidents soon after an accident may help to sway decisions in your favor. Trucking companies are going to fully protect themselves when their vehicles are involved in an accident; you should do the same.

Accidents involving tractor-trailers or other large commercial vehicles can result in life-changing injuries that are financially crippling without adequate compensation. The Boston attorneys at the Kiley Law Group understand the extensive medical costs, long-term rehabilitation and lost wages that can burden accident victims and their families. We also know how difficult it can be to receive fair compensation from trucking companies and their insurance providers without legal representation, and we have more than 40 years of experience recovering the financial security injury victims need to restore their lives.

There are different types trucking accidents, all of which may be difficult to assign fault without a knowledgeable attorney facing off against the trucking company. Trucking companies themselves often bear a great deal of responsibility in commercial vehicle accidents. These companies may put innocent lives at risk by careless actions, including:

  • Enforcing or encouraging unrealistic schedules
  • Inadequate vehicle inspections and maintenance
  • Failure to monitor drivers’ hours for time on and rest
  • Encouraging transport overloading

Many times, due to the sheer size of the semi-truck, speed and force of impact, accidents involving semi-trucks and passenger vehicles result in a wrongful death. In those cases, a skilled personal injury attorney with the nuanced knowledge of trucking accidents is essential, as they will know the information necessary to address both the trucking and wrongful death aspects of a case.

The sad truth is that some companies put profit before safety and then try to limit the compensation victims deserve when accidents occur. Money cannot make up for all the losses associated with a traffic accident, but it can make the recovery process less burdensome. Luckily, when engaging the Kiley Law Group to represent you or your family in the event of a truck accident, you are gaining a firm made up of attorneys dedicated to protecting the rights of accident victims across Massachusetts. Recent successful outcomes for our clients include $3.5 million for the victim of a tractor-trailer accident; $785,000 for a victim who suffered a crushed ankle in a truck accident; and $650,000 for the victim of a truck rollover crash.

Remember, if you or someone you know is ever involved in a collision with a commercial truck, you should contact a Boston truck accident lawyer as soon as you can. Contact our offices today to receive a free case review and to potentially start your claim immediately.

Post Accident Surveillance

Insurance companies and private investigators – their limits and your rights

 

Can your insurance claim be under surveillance?

If you have recently been injured in a car accident, it is natural that you will file a claim with your insurance company to get compensation not only for the damage to your car but more importantly for potential medical expenses. Surely, you expect your insurer to handle your claim and pay out the compensation as quickly as possible. However, the insurance firm has the right to investigate the case, examine the circumstances of the accident and verify the extent of your injuries before it decides whether to accept or deny the claim. Although it may come as a surprise to you, it is lawful for insurance companies to hire a private investigator to perform various forms of surveillance and data-gathering on you. It is vital to recognize that the insurer is not under the obligation to inform you that such measures are being undertaken. Surveillance may be placed regardless of the value of the claim although, logically, such actions must be cost-effective; thus, the higher the claim, the more likely it is that the insurance company will hire a private investigator.

Of course, privacy is a very sensitive issue, so the thought of being a subject of such an investigation may feel uncomfortable or even distressing, especially taking into consideration how private investigators – and the lengths they are willing to go to – are presented in popular films or TV series. Therefore, it is vital that you be thoroughly informed of your rights as well as the legal limits on the work of private investigators. What can post-accident surveillance include? Are there limits to the types of information a private investigator may obtain? How can you best respond if you suspect that your accident case is under surveillance?

 

The limits – what PIs cannot do

As many private investigators and surveillance companies are quick to admit, whatever action they perform as a part of their work must remain within the strict limits of the law. Thus, how the media usually portray private investigators is often inaccurate. For example, PIs cannot trespass on private property; neither can they obtain access to protected information such as financial, criminal, or telephone records, or credit information. Similarly, it is illegal for a private investigator to wiretap a phone – unless they have the consent of one or both individuals involved. In addition, conversations that occur in a private setting may not be recorded without consent.

Another limitation imposed on the work of a private investigator is an explicit ban on a practice called pretexting. It refers to obtaining restricted information about an individual or a company using a pretext or deceit. A somewhat striking example of this technique was revealed to the public in 2006 in connection to the Hewlett-Packard spying scandal. Back then, the media reported that private telephone records of some HP officials and their families were obtained by investigators who made phone calls to telephone companies impersonating the individuals under surveillance. Practices such as this and similar ones are punishable in the US as common law crimes of false pretenses under the Gramm–Leach–Bliley Act of 1999.

 

What can you expect?

Despite the restrictions, private investigators do have at their disposal several legal surveillance methods and techniques. Recording video, taking photographs of the subject and making audio recordings are all permissible as long as they occur in a public setting. Regardless of whether the subject considers their conversation to be private, if it occurs in a setting where it could be overheard by a third party, a PI in within his rights to record that conversation. This means that if a person’s job is done in a public area, it can be recorded. Insurance companies are not allowed to hire investigators to record any activities that an injured person performs in his or her home, or at his or her own property.

 

How should you react?

If you have recently filed an insurance claim and you suspect that your insurer may have hired a private investigator to perform surveillance on you, what should you do? Unless you have evidence that the PI is engaging in illegal activities, it is not advisable that you impede their work. While it may be uncomfortable to feel that you are being tailed and watched, approaching an investigator is inadvisable. You may, however, try to gather as much information about the surveillance as you can and report it to your legal representative. Of course, you should avoid performing any action that may weaken your insurance claim. This means that you should strictly follow your doctor’s orders and recommendations. Do not exaggerate your injuries for the sake of potential recordings. While it may have been the intention of the insurance company to use a private investigator to gather evidence that would weaken or even disprove your claim, this same evidence may also be used by your skillful lawyer to prove your injury and to help your case. For example, a video presented as evidence for the lack of a claimed disability may have been unfairly edited and a cross-examination of the private investigator who presented such evidence can show the bias.

Above all it is important to remember that if you have been honest with your attorney and your claim is strong, a private investigator is unlikely to produce any compromising evidence. Of course prudent and cautious behavior is always advisable; nevertheless, if you know your rights and the limitations that the law places on private investigators, then their work need not worry you.

Drunk Driving Fatalities on the Rise

 

 After years of relative decline, the number of alcohol-related motor vehicle accidents has begun rising again.

 

March 17th, known internationally as Saint Patrick’s Day or the Feast of Saint Patrick, is for many people in the US an enjoyable way to celebrate Irish and Irish American tradition and culture. Sadly, it is also one of the days of the year when the number of accidents related to driving under the influence of alcohol rises sharply. According to the data provided by the United States Department of Transportation, in the years 2011-2015, 252 people died in car crashes during the St. Patrick’s Holiday. Annually, National Highway Traffic Safety Administration reminds those who will attend St. Patrick’s Day celebrations to designate a sober driver or have another form of transportation back home once the partying is finished. Still, many people decide to get behind the wheel after drinking and jeopardize their own safety as well as that of other users of the road. Sometimes it ends in a tragedy, like the one that played out on Interstate 95 in the early hours of Saturday, March 18th of this year.

That day, around 1 a.m., Michael Spinale, a 41-year-old resident of Roslindale, Boston, MA, crashed into the back of a taxi with the speed of possibly more than 100 mph, killing its passenger and injuring the driver. According to court documents, asked by the police if he had been drinking earlier that night, Spinale allegedly responded “Of course I did, it’s St. Patrick’s Day” and admitted to the consumption of “5 or 6 beers”. As the aforementioned documents show, Spinale did not pass field sobriety tests which prompted the police to administer a preliminary breath test that purportedly showed the BAC of 0.13. Spinale was charged with motor vehicle homicide, drunken driving, speeding and traffic violations. After the arraignment that took place on Monday, March 20th, the defendant was released on $10,000 bail; however, he was ordered by the court not to drive or drink alcohol while the case is pending. During that time, he will also be subjected to alcohol consumption tests three times a day. The next hearing has been scheduled on April 21st.

 

Bleak Statistics

Tragic incidents like the one mentioned above are hardly confined to only one day of the year. Across the US, alcohol-impaired crashes, that is to say, accidents where the responsible driver was found to have a BAC of 0.08 g/dL or higher, cause around 10,000 deaths each year. In 2015, the number of such deaths rose significantly to 10,265, which marks a 3.2% increase in comparison with the previous year. This appears to be the largest spike in the number of alcohol-related fatalities in 10 years which raises questions about the effectiveness of the current measures being taken to prevent drink-and-drive accidents, and also about the reasons why a considerable number of people decide to take their chances and get behind the wheel after consuming alcohol.

 

DUI Laws – Effective Enough?

Regarding legal measures that are intended to curb alcohol-impaired accidents, it is notable that even the states where the rates of such incidents are currently the highest in the country, such as Rhode Island and Connecticut (where drunk driving deaths make up respectively 43% and 39% of total traffic fatalities), already have quite stringent DUI laws. For example, in both of those states, ignition interlock (which is a device that a driver needs to blow into before a vehicle can be started – if alcohol is detected in the exhaled air, the car will not turn on) is mandatory for all convictions. Also, in both states, drivers under the age of 21 can be charged with DUI for BAC higher than 0.02 – instead of the regular 0.08. Some might argue that additional preemptive measures are still needed in order to effectively bring down the number of alcohol-impaired fatalities nationwide.

 

What Can Be Done

Indeed, the National Transportation Safety Board has already suggested some ways to reduce DUI deaths. The first of those would be to lower the legal BAC level to 0.05 g/dL. This is the level permitted by law in most European countries based on studies proving its higher effectiveness. Still, within the US, only Utah is planning to start penalizing drivers with the BAC of 0.05 instead of 0.08. The NTSB also recommends stronger enforcement of DUI laws – for example, by means of checkpoints and saturation patrols.

Some states, such as Iowa, are considering the introduction of 24/7 sobriety programs that propose a two-times-a-day, mandatory breath tests for people who already have been convicted of alcohol-related offenses, such as driving under influence. Failing the test would entail consequences with immediate effect – including a jail sentence. Such a program has already been adopted by Omaha in 2014 as a pilot and has been continually in place in most counties of South Dakota since 2005. In that state, the program has purportedly resulted in a drop of alcohol-impaired deaths by 33 percent in just one year.

 

Social Factors – Risk-Taking and Craft Beers

Still, the question why a considerable number of people decide to take risks and drive a car after drinking remains an open one. It seems that one factor may be that now fewer people consider drinking and driving to be risky behavior. For example, in a survey conducted in 2009 by the American Automobile Association, 9 out of 10 drivers asked stated that driving under the influence was a threat to other users of the road. However, in a more recent study, the number of drivers who thought this way was less than 7 out of 10. Another possible explanation for the increase in alcohol-related motor vehicle accidents might be connected to the growing popularity of craft beers. In 2014, craft beer sales grew by 22% in comparison to the previous year. How is this fact relevant to the problem? Craft beers tend to have much higher alcohol by volume content than regular beers meaning a person may reach dangerous or even illegal BAC levels from drinking less than they normally would, and fail to realize how impaired they had become until it was too late.

Although alcohol-impaired crashes used to be a much more prevalent problem in the past, the issue does not cease to be worrisome and the current growing trend does not inspire optimism. Continued measures, both on the legal and the social levels, will need to be taken in order for the problem to become marginal and tragedies such as the March 18th accident to occur less frequently.

Bullying in Boston Schools

Bullying continues to be an enormous problem for children, parents, and schools in our country. Exact statistics vary from study to study, but the National Center for Educational Statistics released a report last year that over one in five students report having been bullied. This number rises to one in four for black students, and students with disabilities are two to three times more likely to experience bullying behavior.

The consequences of bullying are serious and all too real. In 2009, Carl Walker Hoover of New Leadership Charter School in Springfield hung himself after severe bouts of depression and anxiety following repeated bullying. He was 11 years-old. In 2010, Phoebe Prince of South Hadley committed suicide at age 15 after dealing with classmate bullying for many years.

The one bright spot in the tragic, avoidable losses of these young lives is that it compelled the Massachusetts legislature to take action. Massachusetts anti-bullying laws are now some of the most comprehensive in the nation. You can learn more about these laws, how they help everyone in communities dealing with bullying, and what to do if your child is being bullied by reading on.

 

Massachusetts’ Anti-Bullying Laws

When drafting Massachusett’s bullying laws, legislators listened to educators, psychologists, and policy experts to ensure that the bill would be more than just a half-measure. Based on these expert recommendations, the bill goes the distance by offering a more complex set of protections and procedures for handling bullying

These include:

  • A wide definition of bullying (G.L. c. 71, §370), which can constitute any repeated harassment that fulfills any of the following:
    • Causes physical or emotional harm to victims or damages their property
    • Makes the victim fearful of harm or of damage to their property
    • “Creates a hostile environment at school for the victim”
    • “Infringes on the rights of the victim at school”
    • “Materially and substantially disrupts the education process or the orderly operation of a school”
  • A mandate for all schools, both public and private, to have an anti-bullying policy in place that includes an explicit prohibition on bullying, procedures for responding, and prevention techniques
  • Mandatory notification of parents of bullying victims
  • Protections for harassment on the basis of religion, skin color, race, disability, sexual orientation, gender preference, nationality, academic status and more
  • An inclusion of cyber-bullying activities

The Mass. Attorney General provides additional bullying information resources directed at parents of both victims and bullies as well as educators.

 

Effectiveness of Mass. Anti-Bullying Laws

While our anti-bullying laws are far from perfect, Mass. has made dramatic improvements since implementing them. A 2008-2009 study found that 43% of Mass. students said they were bullied at school “sometimes” while 32% said they were bullied “often.”

Now, our state has been reported as having the lowest overall bullying problem in the country according to a study conducted last year. Mass. ranked last among studied states for “bullying prevalence” and among the lowest percentage of high schoolers who have bullied at school, involved in physical fights and skipped school for worry of bullying problems.

 

What to Do if Your Child Is Being Bullied

If you know or fear that your child is being bullied, you should take the steps recommended by the Mass. Attorney General.

  • Talk to Your Child — Get specific information on the situations where they were bullied and who was doing it. Find out about the history of bullying incidents, including other children targeted.
  • Be Supportive — Show empathy to your child and emphasize that bullying is not their fault. Tell them you are happy they shared their experiences with you and that you will work with them and their school to fix the problem.
  • Research — Read your school’s anti-bullying policy, which should be available online or within a student handbook. Also read the Mass. Attorney General’s anti-bullying resource pages.
  • Contact the School, Not the Other Parent — Confronting the other parents or child yourself often only escalates the situation. Instead, follow through with your school’s established procedures to work with educators and administrators together.
  • Don’t Ignore or Disregard Cyberbullying — Online bullying is just as terrifying and emotionally distressful as physical confrontation. Tell your child to block people bullying them and to not engage with harassment directly.
  • Follow Through — If you are not satisfied with your school’s procedures for handling bullying, you can look to other support organizations, including GLAD, your local law enforcement or a civil attorney

Make sure to talk with your kids, not just about their experiences, but what goes on in the classroom and online that could signal a threatening environment. Also, communicate regularly with school officials and teachers to coordinate efforts to keep bullying behavior down. Only a community working together can stop bullying and reduce the factors that lead to it.