In Florida a car is a “dangerous instrumentality. Florida common law holds that owners of motor vehicles may be held liable for damages suffered by third parties as the result of negligent operation of their vehicles when the vehicle is driven with their knowledge and consent. The theory behind this common law is that motor vehicles are dangerous by their very use and, as such, are inherently hazardous, having the potential to cause serious personal injuries if negligently operated. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 469 [Fla. 1920].

With the ownership or operation of a motor vehicle comes great responsibility. There are precautions and rules that everyone behind the wheel should acknowledge and follow, in order for all of us to remain as safe as possible on public roadways.

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A recent article by MSNBC.com suggests drivers are disoriented and have problems deciding what to do in an emergency with cars that display fancy technology and controls such as keyless ignition. In fact in the BMWiDrive, the control functions for the radio and air conditioning were so baffling that if forced drivers to take their eyes off the road.

Shifting from neutral to drive or reverse isn’t what it used to be. Drivers now have to push a button to start their car and most drivers are unprepared for what to do in the event of an emergency.

According to MSNBC, an off-duty California Highway Patrolman and his family were killed when his rental Lexus ES350 sedan accelerated suddenly and crashed into rush hour traffic at 120 mph. Toyota blames the accident on the accelerator pedal, but the deaths are also a major factor in not being able to control a modern car. We used to be able to shift the car into neutral or turn off the engine. However, the driver of the Lexus was unable to shift the car into neutral or switch off the engine because with the ES350’s engine, you would have to press and hold the “Stop/Start” button for three seconds, an action that is not obvious and could be difficult to accomplish at high speeds. Another problem is that Lexus’s shifter is curved and not the typically expected straight line.

Consumer Reports immediately put into action a five fixes plan for carmakers following this incident. They suggest that auto manufactures:

• Make it simpler to turn off the engine in an emergency;
• Require a minimum distance between the gas pedal and the floorboard;
• Engineer cars so a sustained braking force can stop a car in a reasonable distance even with the accelerator pedal fully depressed;
• Require sufficient brake pedal pressure before a car can be shifted from Park;
• Simplify shifting into Neutral.

Consumer Reports states that “finding Neutral should be intuitive and obvious, but the advent of gated and electronic shifters can make finding Neutral in a panic confusing. You shouldn’t have to read the owners manual to figure out how to use the shifter.”

What can the consumer do until some of these problems are worked out:

• Read your owner’s manual carefully;
• Sit in your vehicle, with the owner’s manual and physically work through the various operations of the gadgets in the car;
• Become very familiar with the shifting mechanism in your car;
• Know how to shift to neutral in the event of sudden acceleration;
• Test your braking system in an empty parking lot — try fast stops;
• Never turn off the ignition in the event of sudden acceleration. In most cars, this locks the steering or makes steering much more difficult;
• Never use your cell phone while driving, unless you have hands free operation;
• Never text while driving.

It only takes a quick look at the local news to realize that Florida has a drunk driving problem, just like the rest of the nation. The National Highway Traffic Safety Administration (NHTSA) recently a published a Research Note on Fatalities and Fatality Rates in Alcohol-Impaired Driving Crashes. The study looked at the total number of deaths caused by motor vehicle crashes and compared that to the number of deaths resulting from crashes where alcohol was involved. The report defined an alcohol impaired crash death as a crash involving at least one driver or operator with a blood alcohol concentration of .08 grams per deciliter.

The government estimates that 2,978 people died in motor vehicle crashes in Florida in 2008. Crashes involving drunk drivers account for 875 of the 2,978 deaths. The good news is that NHTSA reported that the alcohol impaired driving fatality rate declined in 40 states. The bad news is that Florida is one of only 10 states where the alcohol fatality rate either stayed the same or increased. From 2007 to 2008, the alcohol impaired driving fatality rate declined nationally from 0.43 to 0.40 fatalities per 100 million vehicle miles travelled. However, Florida’s alcohol impaired driving fatality rate is higher than the national average. From 2007 to 2008, it remained unchanged at 0.44 fatalities per 100 million vehicle miles travelled. Floridians should strive to reduce the alcohol impaired driving fatality rate; to do nothing will be fatal.

Floridians who want to help reduce the number of drunk driving fatalities should consider donating or volunteering with a local chapter of Mothers Against Drunk Driving (MADD).

In legal cases, a term regularly shows up: “standard of care”. It is talked about, defined and ruled on by the court. In many state statutes, the term is defined as something similar to: “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

What is the standard of care in its most basic terms?

If I am a pedestrian, do I have a “standard of care” as I walk along the street? Of course I do. I must watch the pavement as I am walking so as not to trip over obvious hazards. If I come upon a blocked area of the sidewalk, where work is being done for example, I have the duty to navigate carefully and as safely as I can around that hazard in continuing my walk. I have a duty to avoid running into other pedestrians using the sidewalk. If I must cross the street, I have a number of additional duties I must fulfill.

Why do we have “duties” and “standards” by which we must act? Without them, no one would know what was expected of them and we would not be able to anticipate how to expect others to conduct themselves in given situations.

A car is traveling down a dark, deserted country road, approaching an intersection with a stop sign. The car does not stop at the stop sign and, instead travels through it at highway speed. No other cars were approaching the intersection at the time. Was the driver negligent? Did the driver deviate from the reasonable standard of care? The driver was negligent, but, luckily, caused no damage to anyone. So, if a police officer was around, a ticket would be issued, but nothing further.  So, was it excusable, since no one was hurt? Absolutely not. The same example, but the approaching driver does not see an approaching motorcycle. The motorcyclist is struck and killed. A completely different set of circumstances results, but culminate from the exact same perceptions on the part of the driver in the car. In both situations, the driver “honestly” saw no harm by running the stop sign.

This is particularly true for professionals. The public absolutely must be able to depend on certain standards of performance from professionals. For an engineer who constructs a bridge, we expect that the bridge will carry the weight reasonably expected and will not collapse with that weight. We expect that the professional will act in a manner expected from other similar professionals.

When a doctor decides to treat people, she decides to work within a reasonable standard of care accepted by other physicians. Does that mean if a physician or other professional makes a mistake that they have deviated from the acceptable standard of care? Not necessarily. It means that the professional is obliged to act reasonably as judged by similar health care providers.

If a patient arrives at the hospital with symptoms consistent with 3 or 4 different potential illnesses, it is the job of any physician to determine those illnesses, which are life threatening and try to eliminate or include those first. If the condition could be life threatening, the professional is obligated to continue their investigation until they can determine what course of treatment is best for the patient.

Physicians, like any professional, have pressures extraneous to their profession. In the case, of an engineer, it may be cost overruns and their client may be pushing to cut corners somewhere to minimize those cost overruns. With physicians, it may be a hospital or insurance company. It is the job accepted by the any professional to comply with the reasonable standard of care. In the case of physicians, it is to determine those patients who require hospitalization in order to determine their illness and those who do not need hospital care.

Professionals are required to reach reasonable, well thought, courses of action within their profession. They typically go through additional schooling to prepare them for evaluating a reasonable course of action.  The subject of a professional’s decision may seem complex, but their standard of care is no less real than the driver or pedestrian.

Jurors returned a verdict in the amount of $1,094,034.30 on Friday, February 12, 2010 for a young man tragically injured in a crash with a Palm Beach County School Bus.

The 14 year old boy, Altavious Carter, was being driven home by his basketball coach after practice. The coach made a routine stop at a red traffic light. A Palm Beach County School District bus was traveling at 45 or 50 miles per hour, approaching the unsuspecting 14 year old basketball star. For reasons still unclear, the bus failed to slow; failed to stop; and rear ended the vehicle where the 14 year old was appropriately seat belted. The 14 year old boy, who loved basketball, suffered a broken neck and other serious injuries.

Not surprisingly, the Palm Beach County School District admitted their fault in the accident and the case went to trial in Palm Beach County last week. The School District argued they should not owe the young man more than $250,000 for his very significant injuries; because they argued he had failed to suffer a permanent injury.

Searcy Denney attorneys, Brian Denney and Jack Hill, tried the case to a jury of six Palm Beach County jurors.

This young man has fought a valiant battle in coming back from his injuries. Doctors feared he would be paralyzed, but this young man has demonstrated a heroic courage. He has had very limited resources with which to rehabilitate himself and has largely been successful through sheer strength of will.

Because the School District of Palm Beach County is a “sovereign immune”, governmental entity, it is not likely they will voluntarily make payment of the verdict. It will be necessary to win a claims bill submitted to the Florida legislature before any payment will be made to Mr. Carter. Although the battle is not over Attorneys Denney and Hill are ecstatic that their client will have the funds to go forward in his life on a more positive basis than he has been able to do so far.

Japanese auto giant, Toyota, has been under fire in the last few months over recall woes for sticky brake pedals and mats that entrap the accelerator pedal. Twenty deaths have been blamed and linked to the faulty gas pedal and YouTube has videos and 911 recordings of people whose Toyota has sped out of control.

Our faith in a brand that for years has ensured safety and quality is now tarnished. The lack of importance Toyota initially put on the recalls and their quickness to repair these defects has consumers fuming. Toyota is also accused of taking far to long to recall the cars in the first place. Reports on sticky pedals in Toyota’s have been documented back to 2008. It has recently been acknowledged that Toyota has known about customers complaining about sticky accelerator pedals in the UK since late 2008.  Toyota only went public on these complaints after British government safety officials alerted US counterparts who were handling a massive deluge of complaints about the sticking accelerators. This exposure led to Toyota’s recall of 12 of its popular vehicles, with some 2004 models being involved in the recent recalls. Toyota has recalled nearly 8.5 million vehicles since November 2009 around the world.

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You may recall last year when several accidents and a couple deaths happened as a result of some defective tires manufactured by Chinese companies.

Now, there are reports of bad valve stems manufactured by…you guessed it, a Chinese manufacturer. A recall has been issued involving some six million valve stems.

Apparently, the stems are prone to cracking; causing them to leak; and ultimately the trire goes flat. A flat tire at highway speeds can be lethal and, so consumers are encouraged to check their tires and valve stems for possible deterioration.

You can check the stem by grasping it and gently turning it clockwise. Look for cracks in the stem, particularly where it abuts the tire rim.

The manufacturer is Tech International and the involved models are: TR413, TR413CH, TR414, TR415, TR418, AND TR423, manufactured between July and November of 2006. Unfortunately, it is impossible to determine the manufacturer or model of the valve stem by a physical examination.

For more information, go to the National Highway Safety Administration recall notice and watch this very Bad Tire Valve Stems by Michelle Buckman.

The European and the British people are warned about aging tires. They are warned that old tires can be dangerous. The European and the British people are educated that a brand new tire, fresh from the store shelves, might not be brand new. The European and the British people are educated to check tire age and to be cognizant of the dangers associated with it.

The American public is not warned about aging tires; that old tires can be dangerous; or that “brand new” tires on the store shelves may be 2, 3, or 6 years old when they are sold and put on our car.

A recent article posted by a colleague at Injury Board, Mike Bryant, provides some very useful links to an older 20/20 report that I have to confess I had completely forgotten about.

In Florida, apparently the heat fosters more than just mosquitoes, humidity and hurricanes. Down here in Florida, the heat also causes tires to wear at a higher rate; something that tire manufacturers have known for some time.

If the higher ambient temperatures subject tires to a higher failure rate, the age of the tire also figures importantly into the failures. Again, something tire manufacturers have known and have apparently been waiting patiently for years to be regulated about, well, by someone.

When you buy a “brand new” tire from a retailer you expect, well, a “brand new” tire. You may not get what you expect. Apparently tires can sit on shelves for 2, 3, 6 or more years before being sold. All that time, the tires are being exposed to the air, drying the rubber out and aging while they sit there on the shelf. They still look brand new; they still have great tread depth; and they still smell new; but they have been degrading the whole time.

So, how can you tell the age of your tires? Not easy with many tire manufacturers. The special coding used on many tires can only be found by crawling under the car and looking at the inside of the tire. The codes will give you tire size, location of manufacture, and the date of manufacture. The date is the important part.

Everyone should pay close attention to tire health and age, but clearly, based on studies by the National Highway Safety Administration, people in states where the ambient temperatures remain warm to hot all year should pay special attention:

• When you purchase tires ask the retailer to show you the date of manufacture.
• Do not purchase tires, which are already 3 to 6 years old.
• Check tire pressure often.
• Maintain manufacturer recommended levels of tire pressure.
• Return to the tire dealer anytime you have repeated loss of pressure in tires.
• Avoid petroleum based tire “cleaners”.
• Inspect your tires, both the exterior and interior, for wear or damage.
• If you hit something while motoring down the road, inspect your tires at your next opportunity to verify any damage.

The story is all too common. An innocent victim’s life is taken and their family is forever changed by the irresponsible actions of a drunk driver. Ironically, drinking and driving crashes are one of the most easily preventable catastrophes. Drinking and driving is a choice each driver makes and with that choice comes the responsibility of possibly taking another’s life.

MADD (Mothers Against Drunk Driving) estimates that each year nationally, more than 1,000 people die during the period between Thanksgiving to New Years, in drunk driving crashes. Because of increased consumption of alcohol and an increase in the number of special events and parties, drinking and driving is more prevalent.

Despite reports from the National Highway Traffic Safety Administration stating that alcohol-related traffic deaths fell by 7 percent in 2008, too many people continue to get behind the wheel after they have had a few drinks. Is it really worth it? Do you really need to drive your car home so badly that you will risk your life, your career, your family, and someone else’s life?

The easiest way to avoid getting into trouble in the first place is assigning a designated driver to provide safe rides by staying sober. By planning ahead, there is no question who is driving or how the group will be getting home. If you know you and your group will be drinking, then plan ahead and hire a taxi to take you to and from your destination. A little bit of planning can make a big difference in your life and the lives of other’s in this holiday season.

Some simple tips to stay safe this holiday season:

• If you drink, don’t drive, no matter how little you think you have had to drink.
• Designate a driver before you arrive at an event or party.
• If hosting a party, make sure to set up rules on drinking and driving. Offer to provide a ride home or a place for guests who drink to sleep.
• If possible, avoid driving during the early and late evening hours on holidays like Thanksgiving, Christmas, and New Years. Protect yourself and passengers by wearing a safety belt at all times.

Have a happy, safe holiday season.

“More than 76,000 Americans have been killed walking or crossing the street in the past 15 years, and pedestrian deaths account for about 11.8% of all traffic fatalities;” that published in a joint report by groups Transportation for America and the Surface Transportation Policy Partnership entitled ‘Dangerous by Design: Solving the Epidemic of Preventable Pedestrian Deaths (and Making Great Neighborhoods). And according the recent USA Today article ‘Communities try to prevent pedestrian traffic deaths,’ (USA Today, November 10, 2009, 5A) those groups are lobbying Congress in an effort to require states to spend their share of federal funds on road projects to address the needs of pedestrians. This comprehensive report includes the most dangerous cities for pedestrians and provides safety rankings for each of the 50 states.

However, regardless of Congressional action or future state cooperation in making pedestrian safety a priority, the fact that pedestrians account for approximately 1 in 10 traffic deaths nationwide is staggering.

Every time a pedestrian takes to the street, whether it be walking, jogging or biking, you should recall this statistic and:

• Be defensive;
• Assume that drivers do not see you;
• Assume drivers do not understand pedestrian traffic laws;
• Assume drivers are preoccupied with whatever drama unfolded in their lives that day;
• Assume drivers are late to wherever they are headed;
• Assume drivers are distracted, using a cell phone, reading a newspaper or magazine as they drive;
• Assume drivers are driving a vehicle with defective brakes;
• Assume there will be drivers who have been drinking,

For Floridians, pay particular attention in these “top rated” cities:

1) Orlando.

2) Tampa-St. Petersburg.

3) Miami-Ft. Lauderdale.

4) Jacksonville.

Being outside nearly year round is a perk enjoyed by few, Floridians luckily included. When doing so on bike paths and sidewalks near roads, always be on guard.

Many of you reading this blog may have never heard the song ‘Walking in Memphis,’by singer-songwriter Marc Cohn. This was an early ‘90’s homage to the land of the Delta Blues, influential Beale Street, Elvis, and countless other subtle rock music references by singer-songwriter Marc Cohn. This was an early ‘90’s homage to the land of the Delta Blues, influential Beale Street, Elvis, and countless other subtle rock music references. Evidently additional lyrics are suitable, something to the effect of: “well I was walking in Memphis, but I was hit by a car and was killed.”

Gruesome, but realistic, since Memphis is tabbed as the 5th most dangerous city for pedestrians by the aforementioned report.