Governor Steve Beshear signed the Cell Phone Text Messaging Bill into law in Kentucky on April 25, 2010. It is about time. I hope this bill will have its intended impact and prevent serious automobile accidents caused by inattentive or distracted drivers. 

Under the new law, any driver under the age of 18 is prohibited from using a cell phone in any manner while driving.  This applies to an instruction permit, intermediate license or a full operator’s license.  There is one and only one exception to this.  That is to summon medical help, law enforcement or a public safety agency in the case of an emergency. 

            There are also provisions that relate to ALL drivers. Anyone who is operating a motor vehicle cannot write, send or read a text-based communication such as text message, instant message or electronic mail while operating a motor vehicle.  My understanding is that there will be warnings issued on violations until January 1, 2011. 

The fine for a first offense is a mere $25.00. Second offenders on up are fined $50.00 plus court costs. These fines appear to be a mere slap on the wrist. What if a bicycle accident victim is seriously injured or killed by someone who is texting while driving? Is a $25.00 fine going to send a message and act as a deterrent? I would propose much harsher penalties, maybe even prison time and a charge of manslaughter in extreme circumstances. Texting while driving is said to be more dangerous then drunk driving. The penalties should at least be the same!

            Two weeks after the Cell Phone Text Messaging Bill was signed into law I was traveling down I-64.  Ironically I was near the Frankfort, where the bill was signed and debated.  I was passed by a driver who had a laptop computer wedged between the passenger seat and the dashboard. The computer faced him and he was typing as he passed me going well over the speed limit!  I had a “Did I really just see that?” moment.

We really need to use some common sense when we are driving a car.  I believe the Text Messaging Bill is a good start; however, I don’t believe the penalties are harsh enough to have a real impact. It didn’t faze my friend with the computer wedged in his front seat.  Inattentive driving can cause can cause severe consequences, such as brain injury, paralysis or even death. 

There are efforts nationally, such as Oprah Winfrey’s “No Phone Zone.” This is a push to get teenage drivers to enter into a contract abstaining from texting while driving or even using a cell phone in the car.  What a great idea! My 16-year-old daughter helped to get signatures and pledges at her high school.  Her class was able to get over 100 students to sign a contract or pledge not to use a cell phone while driving. 

This is a good start but as I said, Kentucky needs to go further with penalties and enforcement.  For now, we’ll take what we have and hope that all Kentuckians use common sense to prevent serious motor vehicle accidents and fatal accidents on our roads.

The March 26th accident in Hart County, Kentucky is the second worst traffic accident in Kentucky history.  The worse occurred on May 14, 1988, when 27 people were killed in a bus crash caused by a drunk driver outside Carrollton, Kentucky. I was a young prosecutor at the time and was horrified by the accident. I still get a chill every time I drive pass the memorial sign on I-71.

       I would describe The Munfordville truck accident in the same one word: “horrific.” A semi truck traveling south in the early morning hours crossed the median, went through the cable barriers into the oncoming traffic and hit a van head on killing 10 of its passengers  The driver of the truck was also killed.  Several families and communities suffered great losses that morning. My heart goes out to them.

       The 10 people in the van were traveling from Marrowbone, Kentucky to Iowa for a wedding.  They were members of the Mennonite faith. As the grieving process continues with family, loved ones and communities touched by this tragedy are looking for an explanation as to why and how this happened.

       There have been some answers from this ongoing investigation of The National Transportation and Safety Board, who are investigating the crash.  The cable barriers were found to be properly installed and up to safety standards. Unfortunately there is little that can stop a truck loaded with auto parts. We know that there were no skid marks on the roadway. We can only guess as to why the driver of the tractor trailer did not brake.

       Information from The Federal Motor Carrier Safety Administration has identified the trucking company from Alabama involved in the accident as Hester. Hester has had a poor safety rating from federal regulators and repeatedly failed roadside inspections.  The FMCSA gave Hester a rating of 88.4 based on a review of inspection in February.  The scoring range goes from 1-100, 100 being the worst score. Any score of 75 or more is considered deficient.

       The truck involved in this tragedy had been cited with problems ranging from lights, brakes, and emergency equipment.  These problems were identified in six roadside inspections since 2008.  There have not been any citations issued in 2009 or so far in 2010.

       A spokesman for the American Trucking Association said that based on the safety score the trucking company should not have been in operation. I will look with interest as the NTSB goes through their investigation. What will the driver’s log show? Was the vehicle in proper working order? Was there brake failure?  These are questions that any truck accident attorney would be interested in pursuing a wrongful death claim, as well as family and friends who are looking for answers. Although there is nothing that can be done to reverse this tragedy I hope the parties who are responsible will be held accountable. Based on the track record of Hester there is a good chance this accident could have been avoided.

As a Kentucky accident attorney clients frequently ask me “how do you get paid?” How much money do I need to have to hire a personal injury attorney? Do I have to give you money up front to take my case?  The answer is NO. 

Almost all auto accident attorneys or personal injury attorneys take cases on what is called a contingency fee basis.  A contingency fee means is you do not pay anything up front and you do not pay your attorney on an hourly basis. A personal injury attorney is paid a percentage of what they recover or settle your accident case for at the end of the case.  In most cases the contingency fee is 33and1/3% or 1/3 of the recovery. Sometimes the fee may be 40%. Generally, if there is no recovery, you do not owe the attorney a fee.  This is good for you, the accident victim.

You do not have to pay anything up front at the time you hire an attorney. While you are treating with doctors and while you are off work you don’t have the extra money to hire an attorney.  The attorney will get paid at the end of the case.  A personal injury attorney will charge you nothing unless he wins your Kentucky accident case. The bottom line is you don’t have to worry about coming up with any money to hire an attorney in an auto accident case.  A contingency fee is almost always offered. That is the way the accident attorney will be paid and you will be able to get good representation.

We all know that seat belts save lives. Wearing seat belts prevent serious auto accidents. I have hammered this home to my daughters since they were old enough to understand. I wouldn’t turn the car around in the drive way without making them buckle up. Maybe I was a bit over the top, but as a personal injury attorney and a former prosecutor I have seen fatal auto accidents and serious injuries that could have been prevented had these accident victims been wearing their seat belts.

I remember the first time I really came to understand this as if it was yesterday. I was working as an Assistant Commonwealth’s Attorney in Jefferson County. I was a member of the Fatal Accident Support Team. I was called out to the scene of fatal accidents in the middle of the night. I drug myself out of bed to an accident scene that involved drunk driving. This was in the late 80’s not long after the horrific Carrolton, Kentucky Bus Accident.

I arrived at the accident scene in the south end of Louisville. When I arrived I was advised as to what had happened. I was asked to review a search warrant to obtain a blood sample to be use to prove the intoxication level of the drunk driver. After I had done my job the investigating officer took me over to the car of the accident victim. He said the driver, an elderly man, was not wearing a seat belt. I am sure I was being tested since I was only three years out of law school. At that time the police officer took my right hand and placed it on the chest of the deceased. It felt like jello. Every bone had been crushed. I realized at that moment that seat belts save lives. My perspective of seat belts had been changed forever.

Why do so many Kentuckians refuse to wear seat belts if they save lives? We have all seen the “Click It or Ticket” campaign. Over 23,000 people are cited for not wearing a seat belt annually on Kentucky roadways. We know that it is against the law and it prevents injuries and deaths.

I saw a video on CNN that might change your opinion of seat belt usage. It is an original approach to road safety advertising from the Sussex Safer Roads Partnership. The title of the piece is “Embrace Life. Always Wear A Seat Belt.” Check it out. It is powerful! It drives home the point that not wearing a seat belt will affect you and your family. Take care of you and your loved ones. Wear a seat belt and prevent car accidents that can change your life. Drive safe Kentucky.

            Without evidence you will not be successful in pursuing your Kentucky accident claim. Whether it is a car accident, a truck accident, a bicycle accident or a wrongful death case you must be able to prove what happened. I know this is a harsh statement to start this article off with but it is the truth.  Without witnesses, pictures, medical proof and other documented evidence you are not going to be successful in prosecuting your Kentucky accident claim.  I use the word prosecuting because as an accident victim you are in a position of being required to prove your claim to the insurance company. Yes, much as a prosecutor does in a criminal case when he is arguing for a conviction. 

In the past few weeks I have had numerous clients come into my office who have been injured in auto accidents.  The facts have been somewhat strange and bizarre. They include:

·        Hitting parked cars

·        Cars illegally parked

·        Cars in front going into reverse and backing up for seemingly no reason. 

·        Buses swerving over the center line

You might think that this is a no?brainer. How could anyone not believe these people?  Isn’t it easy to show whose fault these accidents are? This is not always the case.  You never know what the other side is going to say, what reasoning they’re going to give or what they’re going to say about you. Believe it or not they may not tell the truth.  I have had to decline representing people in the last few weeks because:

• There were no photos to prove the position of the vehicles at the time of the accident.
• There were no independent witnesses to verify my potential client’s story.
• The police investigation was inadequate.  There were no diagrams or measurements made as to the positioning of the vehicles. 
• There was not immediate medical treatment.

Immediately following an accident the adrenaline is flowing.  Your brain is foggy.  You’re almost on auto pilot.  You are not concentrating on what is necessary to prove your case. You have no idea that any of this will be an issue. This is the furthest thing from your mind. Over the next several months you may find that without these items it is impossible to prove your case. The insurance adjuster may not be as friendly when you are finally asking to be compensated for what you have been through.  

You need to make sure you protect yourself by:

·        Obtain the names of witnesses to the accident.

·        Take pictures of the damage to BOTH vehicles. 

·        Document the position of the vehicles with photos.  You can do this with your cell phone or a camera in your pocket. You can use a sketch pad. But get the information!

This is just at the accident scene.

            I was speaking to an insurance adjuster today about a client’s claim. We will call her Sarah.  A witness that was in a yard next to where the accident happened had given a statement to the police. This witness claims that Sarah struck the car in front of her before she was rear ended.  The impact from behind was definitely more severe and we will be able to collect on the claim.  However, the adjuster wants to deduct for Sarah’s contributory negligence. He is arguing that Sarah is partly to blame for her injuries, based on the witness statement.  This may in fact occur. It is a jury issue. But Sarah has a fighting chance. She was on the ball enough to get the names of two independent witnesses who were not listed on the police accident report. They were on the front porch of the house next to where the accident happened. They observed the accident and can verify that Sarah did not run into the car in front of her until she was propelled into that car by the rear impact.

Sometimes this is just luck but having the awareness to document the evidence can save your Kentucky accident claim.  We have a fighting chance to prove that Sarah is right.

The insurance company is looking for any reason they can to:

·        Deny your claim

·        Defeat you claim

·        Lower the amount of money they are going to have to pay out on your claim. 

This is their job.  This is why they make the money they do. That is why insurance companies are profitable. That is why they have the lobbyists in Frankfort arguing their position. 

Protect your Kentucky accident case by documenting and documenting and documenting from the time you’re in an accident to the time you have finished treating and finally settle your claim. You must document.  By doing this your Kentucky bicycle accident case will be successful! Your Kentucky motorcycle case will be successful! Your Kentucky truck accident case will be successful!  Do not get caught into the trap and think that somebody else will do it for you.  Take matters into your own hands so that you can successfully prosecute your claim.

            I often focus on driving safety and on how you can be a safer driver. I write about keeping our Kentucky roadways safer. How you can avoid serious automobile accidents is another topic I blog on.  A tragic and unfortunate accident last weekend reminds me that there are also auto accidents that occur after your car breaks down. Traffic accidents occur while a vehicle is disabled on the road.  Visibility is a key factor in your safety after a car breaks down. 

David Meredith and Omar Lopez were killed after they were hit by a pickup truck on Washburn Avenue in rural Jefferson County, Kentucky.  This accident occurred after Meredith and Lopez’s vehicle had been in a minor rear-end collision on Washburn Avenue.  Apparently the men were standing behind their truck after the accident and blocking the taillights. This made it difficult for the vehicle coming from behind to see the car in the road.  Additionally there was fog in the area. This made visibility even more of an issue.

 Any time you’re on the road visibility is something you should be aware of.  This is the case whether you are a pedestrian, a bicyclist, or a disabled motorist.  You need to make yourself visible.  Bicyclists have reflectors and bright-colored jerseys that some would say make us look ridiculous.  Runners wear vests to make them more visible if they are jogging on the road in the early or late hours of the day.  The occupants of a disabled vehicle need to take precautions to make that car visible on the roadway.  Reflective triangles should be placed behind the car. You can purchase them at almost any automotive store. They should always be used.  Emergency flashers should be turned on.  Do anything you can do to make yourself more visible.  If you do not take these precautions drivers coming up on the accident scene or on you may not have a chance to avoid a tragic accident.

            A few years ago I represented a truck driver in what I would call a freak accident.  A semi tractor-trailer was traveling down I-65 south near Shepherdsville.  The trailer came loose from the tractor and came to a stop in the middle southbound lane of I-65 in Bullitt County, Kentucky.  When the trailer came off there was no power going to the lights on the back of the trailer.  Additionally no reflective tape was on the trailer.  The driver had no triangles or flares to put behind him.  He attempted to get the trailer re-connected to the tractor. 

My client was driving a tractor-trailer and also headed south on I-65.  He stated to me that he was driving along and he knew something was different but it just looked like there was nothing there.  He compared it to a black hole.  By the time he realized that there was a trailer stopped in the middle lane of the expressway he had no chance and slammed into the back of the disabled trailer.  A passerby pulled him out of his flaming truck.  Tragically the other driver was killed as he was between his tractor and trailer at the time.  My client had hit his trailer. This tragic truck accident could have been avoided had emergency flashers, flares or reflective triangles been used. Unfortunately, none of this equipment was even in the truck.

            I bring this up because you never know what is going to happen on the highway.  You need to be cautious and careful at all times.  I represented a client that had just been in a rear end collision. As he was walking back to the driver’s side of his car another car came flying by. Luckily his front door was open and he jumped into the front seat to avoid being hit. Any disabled motorist, whether it be from a traffic automobile accident, a motorcycle accident, a truck accident, or simply a blown rod in your engine, must make themselves visible on the road.  Take precautionary measures to make yourself visible to traffic.

·        Make sure your car lights are on

·        Place reflective triangles out behind the disabled vehicle

·        Place flares behind the vehicle

·        Get yourself off the roadway

·        Wait for emergency assistance to come to your assistance. 

If you take preventive measures you can keep from becoming a statistic. You can avoid a tragic motor vehicle accident. In this way you will be able to avoid the tragedy that happened last weekend on Washburn Avenue.

I was driving my 16 year old daughter to school this morning.  She has her driver’s permit and is learning to drive and is very excited about it.  She told me that there was a program on Channel 1 at her high school here in Louisville that was preempted by the school.  For those of you that are not familiar with Channel 1, it is a national news program that is shown in high schools. My daughter’s school felt that the content was too graphic.  So what does a sixteen year old do if her school tells her she can’t watch a video because it is too graphic? She gets on the computer and performs a search on YouTube and was and finds the program. 

The preempted program is a community awareness ad from the United Kingdom depicting the dangers of text messaging and driving by teenagers.  I have to admit that it was very graphic.  It showed three teenage girls driving down the road while using a phone to send a text message to a friend.  They were driving and paying more attention to the phone then to the road. Their car went across the center line and struck another car head-on. The airbags deployed.  Heads hit the windshield. There was blood everywhere. As the car came to a stop it was T-boned by another car. One girl died in the lap of the driver. 

It went on to show the families in the other cars.  There was a toddler who kept asking; “Why won’t mommy and daddy wake up?” A child in a car seat was also shown motionless with eyes wide open, obviously dead.

Although it was quite graphic I disagree with the school’s decision to pull this informational video. Teenagers who are new drivers generally have no idea as to what the real dangers that driving a car entails and how text messaging behind the wheel can affect not only their life, but the lives of others.  I don’t believe that most teenagers have a true understanding of the real dangers of driving a car. My old boss at the Commonwealth attorney’s office, Ernie Jasmine used to refer to an automobile with a drunk driver behind the wheel as a 2-ton projectile with a license to kill.  I believe he would have referred to a driver who is texting in the same way. Teen drivers need to be shown that a car is a very dangerous weapon that can kill people and change their lives forever. 

Click here if you want to watch this video.  The video is graphic, but no more graphic than what we watch on the crime shows on television.  I believe all drivers should view this.  This type of public awareness ad could help make our Kentucky roads safer and help eliminate serious automobile accidents that occur almost every day due to driver inattention.

Just when you think you have heard everything you read a story about the death of a two year old that just turns your stomach. It makes you think how could this happen?

The Rasansky Law Firm out of Dallas, Texas has filed a wrongful death lawsuit on behalf of the mother of a 2-year-old girl who choked to death at The Woodbridge Day School, a northeast Dallas daycare center, one year ago. The wrongful death lawsuit alleges that the daycare worker had no first aid training and the daycare owned by Neyse and Robert Hall, knew it. According to the lawsuit, employees at the Woodbridge Day School did not notice when 2-year old Isabella Estep started choking on a small rock. The child then collapsed inside the school. Despite employees being all around the unconscious child, five to 10 minutes passed before anyone noticed something was wrong. Tragically, Isabella passed away after being transported to a local hospital.

Now here is where it gets worse. It is alleged that the owners of the daycare sold the daycare a short time after the death. This was in an effort to prevent a report to the Texas licensing board according to the lawsuit. Jeff Rasansky said. “They have not been truthful about their role in this child’s death, and they have taken steps to prevent parents of other children from ever learning about their involvement.”

This is a tragedy that sounds like it could have been prevented on several levels. Those being hiring and training. Also, what procedures were in place for monitoring a two year old? Why was the child put in an area without a care giver where he had access to small rocks?  My sympathies go out to the family. I hope they get the answers they deserve. My daughters were in day cares from the time they were infants so my wife could work. You place your trust and leave our most valued possession with them. It is very sad when a daycare does not live up to the trust you put in them.

We will follow this case as it progresses with hope of preventing this sort of tragedy from happening in Kentucky.  

This past weekend I was invited to help plant trees along Bardstown Road between the Showcase Cinema and Hikes Lane.  This invitation was extended to me by Cindie Cook of the Bon Air Neighborhood Association.  For those of you who are not familiar with Cindie she was friends with Jen Futrell. Jen was the cyclist that was struck and killed by a van while riding her bike home from work down Bardstown Road on October 3, 2008.

This was a tragic accident that has brought attention and outrage to the plight of cyclists and pedestrians.

The Bon Air Neighborhood Association, as a group is a big part of an effort to make the Bardstown Road corridor a tree-lined boulevard that is both pedestrian and bicyclist friendly.  Cindie Cook believes this would encourage people to stop and shop.  Also, there is a hope that it would bring new business to the area, especially the now vacant Showcase Cinema buildings.

I believe an area that is active and as busy as Bardstown Road could be a much safer place for pedestrians and cyclists and especially those that live in the area.  As I was planting trees along Bardstown Road, the amount of traffic was unbelievable. Cars were buzzing by with very little break. I know it is hard to judge speeds as you are standing along the side of the road, but I would guess that many of these cars were speeding. During my three hours on Bardstown Road I saw two car accidents that occurred within 75 yards of where I was working. I also became oblivious to the horns that were honked almost continuously.

There was very little way for people in the neighborhoods along this stretch of Bardstown Road to walk to the mall, to restaurants or to even to cross the street.  My hope is that the efforts of Ms. Cook and the Bonaire Neighborhood Association will make this area safer, limiting automobile accidents, pedestrian accidents and bicycle accidents. 

I learned from Cindy that Kentucky is currently seventh in the nation in pedestrian and bicycle fatalities.  There were 32 cyclists and pedestrians killed in Louisville, Jefferson County, Kentucky in 2008.  It is her hope that the tree plantings will add awareness to bikers and walkers, as well as being a tribute to her friend that was killed.  I applaud Cindy Cook for her focus on celebrating and memorializing the life of her friend and for trying to make the streets a safer place. I believe her efforts will save lives and prevent many serious accidents from occurring.

The City of Louisville has experienced bicycle accidents and pedestrian accidents that have resulted in deaths over the past year. These include the triathlete that was killed during an event at E.P.Sawyer State Park earlier this year as well as several young children who were hit while riding their bikes. All of these deaths are needless and my sympathy goes out to the families and friends. They do, however, help to show the need for more driver awareness of those they share the roads of Kentucky with. We need more Cindies in Louisville to help make our roads safer.

The first time I saw the cable barriers as I was driving down I-64 my only thought was that they were absolutely hideous. I admit that I was skeptical about how effective the cable barriers would be. I wasn’t sure they would stop any accidents that concrete barriers wouldn’t stop. Would the cable carriers really prevent a cross over accident? Would there be problems with emergency vehicles getting to the accident scene because they couldn’t get through the median? I had questions but I was wrong.

There are now 51 miles of cable barriers in Jefferson County, Kentucky at a cost of $130,000.00 per mile. From 2006 until August of this year these barriers have been hit 609 times. These barriers cover all of I-265 and I-64 from downtown to the Watterson. There are also barriers in Bullitt County as well as Floyd and Clark Counties in Indiana. Law enforcement officer estimate that the barriers have saved 100s of lives.

The cable barriers have several benefits over concrete barriers:

·         They are significantly less expensive at $130,000.00 per mile as compared to $400,000.00 per mile for concrete barriers.

·         Cars that hit the barriers often get stuck between the cables and do not rebound back into traffic.

·         They absorb the energy of impact helping to minimize the severity of some injuries.

There are those that believe that all Kentucky interstates should be built with cable barriers. What do you think? If they save lives I am for it. There are plans for additional cable barriers in Kentucky, but unfortunately there is no money allocated for the Louisville Metro area.

There are groups who oppose cable barriers, such as most motorcyclists. Jay Huber, the president of the Kentucky Motorcycle Association/Kentucky Bikers Association, calls the cable barriers “a cheese slicer”. This is something I hadn’t considered. How would a barrier made of cables stop an out of control motorcycle? I can see that these barriers are potentially dangerous and deadly to the rider causing deadly motorcycle accidents.

Huber believes that the installation of nylon straps or mesh over the cables would reduce this danger. There is opposition to this addition. The stance against this safety measure is the additional cost of installation. Additionally there have been no motorcyclists seriously injured or killed due to striking the cable barriers. We spend enough money on foolish endeavors. Let’s make sure that the cable barriers are safe for everyone.

Another problem according to the Kentucky State Police is that the barriers prolong emergency vehicle response time. This doesn’t occur very often, but vehicles have had to travel an extra two to three miles to find a cut through to get to the accident scene.

I played golf last month with one of the supervisors of a construction crew that was installing cable barriers in southern Indiana. I asked him why they were not putting gaps every ¼ of a mile or so. He gave me two reasons:

1.       The cost would be higher.

2.       An out of control car would get through the gap and cross over into oncoming traffic.

I don’t believe that additional cost should be a consideration if the gaps put in would allow a quicker response by emergency vehicles and save even one life. I wonder how muck it would cost? My guess is not as much as the total cost of the concrete barriers. As to getting through the cross over gaps, I did not believe his answer. It seemed like a bunch of bull. If you make the gaps parallel to the highway and have overlapping sections for the gaps that are maybe 50 to 100 feet long an out of control car would not be able to cross over. There is just no way for it to get through.

The bottom line is that cable barriers have saved lives and will save more lives. Let’s make them better to make sure additional lives are saved.