At a busy San Francisco Intersection of Market and Castro streets before 8 a.m. March 29, 2012, a 71-year old pedestrian, Sutchi Hui, of San Bruno was hit by a cyclist. Both the cyclist and Hui were hospitalized after the accident. The cyclist was released with minor injuries. However, Hui remained hospitalized and passed away on Monday, four days after the accident.

The evening of the accident, a comment was posted on the Mission Cycling Club Forum. Chris Bucchere identified himself as the cyclist responsible for the crash.   The message was detailed describing his early morning ride from San Francisco to the Main headlands and back. Part of the message reads:

“The light turned yellow as I was approaching the intersection, but I was already way too committed to stop. The light turned red as I was cruising through the middle of the intersection and then, almost instantly, the southern crosswalk on Market and Castro filled up with people coming from both directions…I couldn’t see a line through the crowd and I couldn’t stop, so I laid it down and just plowed through the crowded crosswalk in the least-populated place I could find.”

“I remember seeing a RIVER of blood on the asphalt, but it wasn’t mine. I really hope he ends up OK.”

Readers of the blog forum commented on the alleged actions of Bucchere. People have different reactions on the reckless riding of Bucchere. The post was ended like this, “In closing, I want to dedicate this story to my late helmet. She died in heroic fashion today as my head slammed into the tarmac… The moral of this little story is: WYFH.” Commenters expressed their reactions in this troubling statement.

The case is still under investigation and I do hope that the responsible person of the bicycle accident must be held accountable. Bicycling can be fun and is a popular way to get around San Francisco, however, every rider must take into consideration his safety and most especially the safety of pedestrian. In most incidents, bicyclists are not at fault, but from what I see this case may be different. In Kentucky, Hai’s estate would be able to file a wrongful death action against Bucchere and collect damages from Bucchere’s car insurance policy under motorist circumstances. The estate would also be able to make a claim under Hui’s car insurance policy. I would strongly suggest that the families contact the best California personal injury attorney they can find.

Do you get frustrating by cars creeping along in front of you slowing you down and backing up traffic? I know I do. I wait for my opportunity and pass them. I look over to give them a mean look of disgust and see an elderly driver. They will usually remind me of my 105 year old grandmother. I then get mad at myself for getting irritated in the first place. Are the elderly really that bad of drivers or am I just impatient behind the wheel? 

There have been many reported cases of injuries and deaths caused by elderly driving.  According to a Fatality Analysis Reporting System (FARS), a total of 3, 981 people ages 70 and older died in motor vehicle crashes in  2009. This was 32 percent fewer than 1997, which was the worst year on record. Why are there so many deaths in automobile accidents involving the elderly? 

Anne Dickerson, chair of the occupational therapy department and a geriatric-driving expert at East Carolina University said that older drivers are safer drivers because they’re more cautious. She goes on to say that there is a certain point in which someone shouldn’t be behind the wheel anymore.  After the age of 75, the risk of driver fatality increases sharply. This is because older drivers are more vulnerable to both crash-related injuries and deaths.  The reasons include:

• Poor judgment in making left-hand turns
• Drifting within the traffic lane
• Decreased ability to change behavior in response to an unexpected or rapidly changing situations
• Poor eyesight

These are just some of the factors that not only affect elderly driving. 

I bring this up because Thursday, March 3, 2011 at about 7:43 in the morning a tragic pedestrian accident happened to a crossing guard who was struck by a vehicle in front of the Walden School on Westport Road in Louisville, Jefferson County, Kentucky.  According to Patrolman Dennis McDonald, the School contracted the guard through a private security company. He was directing traffic on Westport Road when he was suddenly hit by a vehicle traveling at a low speed driven by an elderly woman. The guard was taken to Saint Mary & Elizabeth Hospital suffered a leg injury. No charges have been filed against the driver.

It’s sad for that incident to happen.  Was it because the driver was elderly? But let’s face it, that accident may happen also even if the driver is a teenager. Distracted driving and inexperience could have been a cause. In summation, there should be no singular age in which elderly drivers should not drive anymore.  Instead, we, including the state authorities need to find ways to create personalized programs that allow for independence as long as possible, but that also take into account safety.

New drivers are required to participate an a graduated license program which limits the hours new drivers can be behind the wheel and who can be a passenger in the car.  This is because they are learning to drive and their reactions are not as quick and automatic as an experienced driver. This is a precaution that is in place to help prevent car accidents in Kentucky.

Should a similar law be in place for elderly drivers? Once we reach the age of 75 should Kentucky require us to take a test to determine if we should have limitations on our driving or a restricted license? Right now it is just the individuals personal judgment that limits one’s driving. Put does this protect the public and prevent serious or fatal Kentucky car wrecks? What do you think? Is a restricted license for the elderly an invasion on their personal freedom or a legitimate means of preventing serious and potentially fatal car accidents in Kentucky? As for me I think the Kentucky State Legislature should explore this issue.

As reported in the New York Times on February 15, 2011 the 45-year-old nephew of the Dalai Lama, Jigme K. Norbu of Bloomington, Indiana was struck by a Sport Utility Vehicle at about 7:30 p.m. along the edge of State Road A1A which extends the length of Florida’s East Coast. He was pronounced dead at the scene according to the Florida Highway Patrol.  Norbu was walking as a part of a “Walk for Tibet”, a 300-mile march from St. Augustine to West Palm Beach to promote several international causes.  The driver of the vehicle that struck Norbu was Keith O’Dell, 31, of nearby Palm Coast. He and his 5-year-old son were not injured and no charges have been filed against him.

What can we learn from this tragic pedestrian accident?   When walking along the side of the road make sure you are visible to all traffic. Do not assume the driver sees you. In pedestrian verses motor vehicle accidents the pedestrian will lose.

Pedestrian injury accidents happen in Kentucky. As the weather gets warmer more people will be on the road. Pedestrians, who suffer serious injuries, or even a fatality in traffic accidents, are the result of violation of a traffic law. Pedestrians are vulnerable day or night. Kentucky drivers should keep a look out for pedestrians walking along the street, in crosswalks and outside of the crosswalks.  Pedestrian should follow rules and road signs at night. They should not wear dark clothing. Instead reflective shirts, bands or flash lights should be used. This will make you more visible on the side of a dark road.

What does a personal injury attorney really do for you?  What do you get by hiring an attorney to represent you in your automobile or truck accident case in Kentucky?  There are hundreds of things I do for clients on a daily basis.  These range from basic filing and record collecting to interpretation and application of the law to the case at hand. I prepare clients to give statements. I obtain paperwork to send to the insurance company. I prepare forms. I am involved in negotiating settlements with the insurance adjuster.  I educate clients on the process involved in a personal injury case. I collect medical and employment records. The list goes on and on.

Let’s cut to the chase. What a personal injury attorney really does is take care of everything that happens behind the scenes so you can concentrate on what really matters in your case and that is getting well. You can go to the doctor and recover from your injuries. You don’t have to worry about dealing with the insurance adjuster. Your attorney is doing it for you.  While you are recovering your attorney is behind the scenes collecting information, doing the daily grunt work to get everything together to properly present your case to the insurance adjuster to maximize your potential settlement.  If the case is not able to b settled this ground work allows the case to be properly presented to a jury.

Many times you might be wondering what your personal injury attorney is really. Behind the scenes he is in the process of collecting and gathering information to properly present your accident claim.  So what a personal injury attorney really does is allow you the freedom to take care of your daily life to get better while he takes care of the technical aspects of your accident claim. This allows you to be fairly compensated for your injuries either through a settlement or through the litigation process. 

Here is what The Schafer Law Office will do for you if you are a Kentucky accident victim we represent:

• Educate them on the personal injury claims process and the litigation process.   
• Obtain all written records and documents that are needed to develop and support their claim. This includes, but is not limited to, medical records, the police report and employment records. 
• Conduct an investigation of the facts surrounding the accident. I will obtain witness statements, photographs, diagrams and other physical evidence. 
• Review your automobile insurance policy to determine what coverage is available to you to compensate you for your damages, like medical, hospital and wage loss benefits.  Additionally, uninsured/underinsured motorist coverage is looked at to see if they are applicable to your accident. 
• Review the medical records from your doctors and meet with them when necessary. This can be done in person or telephonically. 
• Retain experts and then obtain reports when needed to support your claim for damages and/or liability. 
• Analyze legal issues and advise on those issues as they arise in your case. 
• File the necessary forms with the at-fault insurance company and the clients own insurance company, including PIP applications. 
• Analyze your health insurance policy and/or governmental benefit plan (such as Medicare or Passport) to determine whether any money paid by that policy is required to be reimbursed. 
• Contact and maintain contact with the insurance company about your claim to help ensure adequate reserves are set aside for the potential settlement of your claim. 
• Conduct negotiations with the insurance adjuster in an attempt to settle your claim, before litigation.   
• When a lawsuit has to be filed, I will prepare and draft the Summons and Complaint to be filed in Court. 
• Confirm the address of the Defendant for personal service of the Summons and Complaint. 
• Draft written questions for information from the other side (called Interrogatories and Requests for Production of Documents). 
• I will help you respond to interrogatories sent by the defendant.                 
• I will prepare you for your deposition. 
• Prepare for and conduct the deposition of the Defendant and any other witnesses that are necessary. 
• Meet with your doctors to prepare for their deposition whether it is a defense deposition or their trial deposition. 
• Prepare and take the deposition of the Defendant’s experts, including medical experts. 
• Prepare you for a medical examination by the Defendant’s doctor, called an Independent medical Exam. 
• Review your medical records and billings. 
• Hire experts to support and prove your claim when necessary. These include other physicians, economists, engineers, vocational experts, etc. 
• Review and analyze expert reports about your case. 
• File all documents in Court as required by the Judge’s Trial Order, including witness lists, exhibit lists, trial memorandum, jury instructions, motions in limine, etc.   
• Meet with and prepare you and other witnesses for trial. 
• Create and prepare exhibits for trial. 
• Organize records and other documentary evidence intended to be introduced at trial. 
• Prepare for mediation when ordered by the Court or agreed to by the parties. 
• Research and write briefs and file motions with the Court when required.  
• Perform or participate in mock trials or focus groups to prepare for trial when deemed necessary. 
• Try the case before a judge or jury. 
• Write briefs or motions following the verdict to obtain post-trial relief, including motions for attorney fees, or to overturn the verdict. 
• Analyze the trial record to determine if an appeal is warranted (if the trial is a loss). 
• Research and write briefs and motions if appeal is filed. 
• Negotiate subrogation claims asserted by client’s insurance company or governmental agency that provided benefits to client.

            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.