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.

In Kentucky if you are a pedestrian or a bicyclist that has been hit by a car or a truck you may be wondering whether or not your medical treatment will be paid for and by whom.  This is a good questions for bicycle accident victims, as well as pedestrian accident victims. As a personal injury attorney, I can tell you that in almost every circumstance your treatment for injuries sustained in a motor vehicle accident will be paid for by an insurance company.  The question is what insurance company? Is it your health insurance? Is it your car insurance? Is it the car insurance for the car that hit you?

The first place that we look is to the car that hit you, the car that caused the bicycle accident or the pedestrian accident. If the car had auto insurance their PIP benefits will pay for your first $10,000.00 of medical treatment, no questions asked, as long as the treatment is related to the accident. 

If for some reason the car that caused the accident did not have insurance we then turn to your own personal car insurance company if you owned a car.  You might think this is the last place that you should look. After all you weren’t in your car at the time of this accident. Under almost all car insurance policies your car insurance is required to pay your medical treatment from injuries sustained in an accident between a car and you if you were a pedestrian or riding a bicycle. No matter how the accident occurred your car insurance will pay as long as it was a motor vehicle accident of some sort. 

Now if the other car did not have insurance and you do not own a car you will be eligible for benefits under what is called the Kentucky Assigned Claims Plan.  This is a state run program that requires insurance companies to, on rotation, pay for medical treatment for people that did not have insurance or no insurance available to them in a particular accident.

After the PIP benefits are exhausted you will then look to your personal health insurance, Medicare or Kentucky Passport. This insurance is secondary and is not used until the $10,000.00 in No-Fault Benefits are exhausted. Your health insurance will pay under the terms of your policy for any medical bills over the $10,000.00. Your health insurance company, Medicare or Passport may be entitled to repayment under federal law called ERISA or the terms of the policy from your personal injury recovery. You should check with an attorney to determine if subrogation is required.

After the PIP benefits are exhausted you will then look to your personal health insurance, Medicare or Kentucky Passport. This insurance is secondary and is not used until the $10,000.00 in No-Fault Benefits are exhausted. Your health insurance will pay under the terms of your policy for any medical bills over the $10,000.00. Your health insurance company, Medicare or Passport may be entitled to repayment under federal law called ERISA or the terms of the policy from your personal injury recovery. You should check with an attorney to determine if subrogation is required.

The bottom line is if you’ve been in a pedestrian accident or a bicycle accident where you’ve been hit by a car you are entitled to have your medical bills paid.  So don’t hold off on getting the treatment you need to recover from your injuries.  Get the doctor and find out what’s wrong with you and get better. This will enable you to achieve the best result possible in your bicycle accident or pedestrian accident case. 

I was driving down Bardstown Road headed to a meeting in the Highlands in the early evening, about 6:45 p.m.  It was dark outside. There was heavy traffic because of the good weather. People were outside enjoying the first warm day in Louisville. There were bikers and walkers every where.

I know you see just about everything on Bardstown Road, but you are not going to believe this. I saw a bicycle with a child trailer attached pedaling up Bardstown Road, not in his lane of traffic, not on the sidewalk (which would be illegal) but coming down the middle line in between traffic.  How big of an idiot can you be?  This bicyclist (I am using the term loosely) was putting himself and his child in danger of being hurt in a bicycle accident. This only goes to show the need for bicycle education to help prevent Kentucky bicycle accidents. Bicycle accidents are usually catastrophic and cause serious injuries. A bicycle will loose when it hits a car. 

This also shows the need for additional pedestrian and bicycle paths and bicycle lanes in Louisville, Kentucky.  I mentioned this need in the week after the table top speech of Transportation Secretary, Ray LaHood at the National Bike Summit.  When I say table top, I mean table top.  Ray LaHood climbed on a table to thank all the attendees for their efforts as advocates for livable, sustainable bike friendly communities. 

Bicyclists and cyclist enthusiasts have a friend in Washington.  There is a trend toward favoring non-motorized transportation.  Mr. LaHood promised to integrate the needs of bicyclists into federally funded road projects.  The Federal Transportation Department has formulated key recommendations for State Department of Transportation’s in this effort. These include: 

• Emphasizing that walking and bicycling should be treated as an equal to other transportation modes.
• Convenient access to people of all ages and abilities for bicycle paths and walkways.  States are encouraged to collect data on walking and biking trips.
• Sidewalks and pedestrian pathways should be protected in the same way roads are protected in reference to repairs and snow removal, etc. 

Mr. LaHood emphasized that this is just a start but these initial steps will help us move forward even further toward the integration of bicycle friendly communities.  This is part of a policy statement that was signed on March 11 and announced on March 15. This declaration concluded that the increased commitment to the investment in bicycle facilities and walking networks can help meet goals for cleaner, healthier air, less congested roadways and more livable, safe, cost efficient communities.  This is not only good for bicyclists but for everyone.  Giving bicyclists and pedestrians a less dangerous and safer way to travel to work or the grocery will not only help the environment but decrease bicycle and pedestrian accidents. This, along with education, will make it less likely to see our friend pedaling down the middle of Bardstown Road in the future.  Thank you, Ray LaHood.

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.

            Groups, such as FocusDriven, who are pushing for texting while driving bans, are at odds with the automakers in many aspects.  We all know that any time we take our eyes away attracting high interest from Intel and Google as a source of business in the future.  The dollar from the road it increases the chance of an automobile accident. Despite this auto manufacturers have unveiled new technology, which although it is really cool, will add to this problem. In the near future cars will have Internet connected computers right in the front seat, smack dab in the middle of the dashboard. These new dashboard computers are signs are definitely there. This is technology that people must have.  It is viewed as an item people will not be able to live without. The screens are approximately 10?inches and located above the gear shift. They show high definition videos, 3?D maps, and web pages.   

Safety advocate groups are up in arms claiming that these devices will just create more deaths.  Nicholas A. Ashford, a professor of technology and policy at the Massachusetts Institute of Technology, stated “unfortunately and sadly, it is a continuation of the pursuit of profit over safety, for both drivers and pedestrians”.   

Audi has a system on its way that will be available this fall.  It is a pop down with a touch pad.  Apparently a notice that pops up when the system is on reads “Please only use the online service when traffic conditions allow you to do so safely”.  Does Audi really believe this is going to work?  If somebody has this toy and it is available any warning will be ignored or a distraction in and of itself.   

There are voice commands systems that are available from some manufacturers but the video is still going to be available and located front and center.  Other companies, such as Ford and their new My Ford system, will allow the driver to adjust the temperature for a friend while the car is in motion but it will only allow you to use the web browser when the car is in park.  These systems are going to have WiFi capability and USB ports. They are a computer in the car.  As predicted by Michael Rayfield, a general manager at NVIDIA, a chip company, that cars are going to become the most immersive consumer electronic device we have.  

We have come a long ways since the horse and buggy days and in some ways maybe we should go back. When we are driving we should be only driving!

            We have made it 2010.  How many people have made their New Year’s resolutions?  I have a suggestion every Kentuckian should resolve to be a safer driver. We must attempt to make our Kentucky roads safer.  How can we avoid serious automobile accidents?  How can we avoid striking a pedestrian or a bicycle? How can we be more careful and avoid motorcycle accidents?  The answer is obviously yes.  In getting 2010 off to a good start I decided to give you my top ten ways to be a safe driver.  Here we go.

            10.       Pay attention to what is going on around you. 

            9.         Expect the unexpected.  You never know when you’re going to have to react.  I’ve been trying to teach this lesson to my daughter as she learns to drive.  I’ll let her tell you some of the stories at a later time. 

            8.         Don’t tailgate. 

            7.         As a bicyclists you must obey the rules of the road.  Don’t ride on the sidewalks.  Make sure that you are aware of what the cars are doing.  Remember cars can’t see you as well as you see them. Drivers of cars need to watch out for bikes too. Remember that bikes have the same rights as cars. 

            6.         Motorcycles don’t needlessly speed and be aware of what cars are doing. When I ski I need to watch out for other skiers as well as snowboarders, who go down a hill differently then a skier. I have to be aware of this and respect the differences to avoid an accident. A driver of a car needs to have the same respect for other vehicles that are on the road. 

            5.         Avoid road rage.  A calm driver is a safe driver. 

            4.         Be courteous.  This goes along with No. 5. Let another car into traffic.  Don’t cut them off.  It won’t kill you. This goes a long way toward helping to control a driver’s temper and traffic running smoothly.  Remember everyone is trying to get somewhere in a hurry and where they are getting is just as important as where you are going. 

            3.         Remember a yellow light means to stop, not speed up and try to get through the intersection.  If you can stop safely you should.  A yellow light only means that you should clear the intersection if you are in it. If you speed up at a yellow light sooner or later you will cause an accident. 

            2.         Make sure your car is in safe working order.  Make sure the tires, brakes, etc. are all working properly. Have your mechanic check your car out. It is a lot cheaper than being in an accident. 

            1.         Drumbeat please – don’t be a distracted driver.  Get off your cell phone.  Don’t text.  Don’t  look up phone numbers.  Don’t put on your makeup.  Distracted Driving is the No. 1 cause of accidents in America today overtaking drunk driving (which you obviously shouldn’t do either, so we will make it 1A). I actually saw a young girl try to text and drive on the snowy roads last night on the way home. She probably ended up in a ditch some where.

            I’m sure I could easily have a top 25 list of ways to avoid automobile accidents. I hope this gets your mind thinking on how you can avoid automobile accidents and be a safer driver on our Kentucky roads.  Nobody is a winner if there is an accident.  Let’s keep them to a minimum this year.

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.

Pedestrians and bicyclists beware! The Smart Car could get you. A problem has arisen with the national trend toward the development of electric cars. Electric cars make very little sound. That is a good thing for a driver and a passenger trying to carry on a conversation, but a potentially dangerous situation for pedestrians and bicyclists. Bicycle accidents and pedestrian accidents can be deadly.

The goal of the manufacturers of electric cars has been to develop and make them as quite as possible, as if the occupants were riding on air. This lack of noise and quietness can be extremely dangerous for those who depend on the noise of a car to avoid an accident. When I am out on the road riding my bicycle it is hard for me to hear an electric car until it is right up on me and passing me. It is as if it appeared from no where.

My wife has had the same experience while she is out walking for exercise. She trains for walks as long as 26 miles. I have heard her complain of cars sneaking up on her. This can be dangerous for all concerned. It is just as dangerous for a pedestrian crossing the road at a crosswalk. If a car making a turn and coming around the corner it is out of the sight of the pedestrian. The likelihood of an accident is increased if the pedestrian is not able to hear a car coming. I suspect that this is an even greater problem for the visually impaired.

Engineers are developing ideas to equip electric cars with artificial noises. Maybe in the future you will be able to pick the sound your car makes as it goes down the road much the way you now pick ring tones for your cell phone. I might pick a Jimmy Buffett song for my car.

At a meeting this September Nissan presented several proposed sounds to the National Highway Safety Administration. These artificial noises included:

·        The Chime

·        The Melody

·        A Futuristic Whirl

Congress is looking into legislation that would require vehicles to give “non-visual” warnings to pedestrians. There is a divide as to whether these sounds should be added to the electric car.

I believe adding sounds to an electric car will help to prevent some serious and deadly automobile accidents involving pedestrians and bicycles. This is especially true in the city. Without some sound coming from a car a bike or a pedestrian has very little chance of avoiding a serious accident.

Several years ago I was waiting for the light to change so I could cross. I was standing at the corner of 5^th Street and Muhammad Ali Blvd. I had my mind on a court hearing I was headed to. As the cross walk sign changed from “Don’t Walk” to “Walk” I put my foot over the curb and stepped into the cross walk. As I was doing this I heard a loud noise and instinctively stepped backed as a bus roared by me as it ran the red light. I was very close to becoming a hood ornament. Without the noise the bus made I am sure I would have been.

There are sounds on crosswalks and in elevators. Putting a noise or warning system on electric cars seems like a no brainer to me. It will make Kentucky roads safer and give bikers and walkers a chance at avoiding a serious car accident.

The city of Louisville has announced a new community awareness campaign called “Street Sense” with the hope of making our streets safer for bicyclists and pedestrians. The premise is we all share the same roads and should work together to make our Kentucky roads safer for everybody. You will see billboards on the side of the highway , at bus stops and on buses. You will see television spots and web videos. Even the good old fashion print ads will be part of this campaign.

The premise is to educate the public and make everyone more aware of the different ways of traveling on our Louisville roads. The Street Sense website has statistics and safety tips. Statistics automobile/bicycle accidents and automobile/pedestrian accidents include:

• Three  cyclists were killed and another 118 were injured in Metro Louisville in 2008 .

• Twenty-one pedestrians were killed and another 353 were injured. In 2008 locally.

This doesn’t count what has happened this year and in past years.  John Carr was the seventh bicyclist killed in Louisville within the last three years. This was at the Triathlon event at E.P Sawyer State park despite the presence of many other cyclist, cones and off duty police. Kenneth Yates has been charged with drunk driving and murder. In 2005 a drunk driver struck and killed, Charles Barfield, a cyclist on Bardstown Road. The driver was charged with Drunk Driving and Murder. He later plead guilty to Manslaughter in the second degree.

During this same three year period there have been a reported 482 accidents involving bicycles and motor vehicles. I am aware of several in the past month that have resulted in serious injuries that are not reported in the news. This doesn’t take into account the thousands of close calls that have occurred.

There are also tip sections for motorist, bicyclists and pedestrians to make the roads safer. Any serious cyclist will acknowledge that those of us that ride bicycles are not perfect and are the cause of some accidents and some near misses. Unfortunately, when you have the car you will win against a bike. It is up to you to protect the 10 year old boy that is pedaling to a friends house. It is up to you to make sure the mother makes it home to her daughter after a long walk. Respect for others is not a dirty word.

There are many drivers that are openly hostile and aggressive against anyone on a bike. I saw that in comments to a Courier-Journal article. I quote; “Those goofy helmets and spandex shorts are enough to make anyone want to run you down…lol”Not at all  funny and a sad reflection on the attitude of a few people towards bicyclist and runners.

I have been buzzed so close  by a septic truck that I have ridden into a ditch. The person driving thought it was funny to come up behind and get as close as possible and lay on his horn. Not humorous at all from my perspective. I have had Mountain Dew cans thrown at me that thankfully have missed.. It doesn’t take a law degree or a High School Diploma to figure out that these are dangerous activities. It is plain old common sense what you should do and not do on the road.

Most of the Street Sense tips are common sense and you should know them from taking your driver’s test. Unfortunately common sense doesn’t always prevail when we are driving. Abramson says “all we can do is educate and inform.” I agree, but let’s take it one step further and respect everyone on the road.

I might no look great in spandex bike shorts, but do I deserve to be hit? As a cyclist I have the right to ride in the middle of the road, but shouldn’t I be respectful of the cars that are stuck behind me? Give them as much room as possible so they can get by and you can be safe. Check out www.louisvilleky.gov/StreetSense for some great tips. It is a great review whether you are a runner, a walker, a bicyclist or a motorist. Learn what others on the roads are doing and turn your common sense into Street Sense. It will save lives!

Last month I wrote a blog warning Kentucky auto accident victims that information placed on an accident victim’s social networking site can have an adverse affect on the settlement of their case.  You may have thought that this was Chicken Little yelling that the sky was falling, that I was a little paranoid. Unfortunately a friend of mine, Seattle attorney Chris Davis, has a client that has learned this the hard way. In a blog posted by Davis he tells the horror story of a client that down loaded pictures and videos to his facebook and myspace pages that literally cost him $20,000.00!

            Davis starts his blog with a statement that this is a true story. During the course of litigation Davis’s client posted pictures and videos of himself snowboarding. This was two years after the accident, but before the case was going to trial.  He was going to trial to get compensation for neck and back injuries suffered in a car accident.

Can you imagine the reaction of a jury? They are hearing evidence in a case where the accident victim will be asking for an award of money damages for their pain and suffering. During the trial the attorney hired by the insurance company shows a video of the accident victim speeding down a mountain on a snowboard and then going over jumps, flying several feet in the air and landing with a thump. The case is over at this point.

            I am sorry that Chris had this unfortunate experience. It is horrible to put your blood, sweat, tears and money into a case and work for a client you truly believe in and then have your hard work fall apart before your very eyes. I do want to thank Chris for posting this information so that we can all learn from it.

            You need to be extremely careful in what you post on your facebook, myspace, twitter, etc. You don’t know who will be able to gain access to the information. It may be a potential employer. It could be an insurance adjuster playing cybersleuth. Whether you are a Kentucky accident victim or a Washington accident victim you need to protect yourself by being careful. Learn from this $20,000.00 mistake.