Uber Self-Driving Car Fatality – A Follow Up

Last week, I had a post outlining the potential legal claims arising from the Uber self-driving car fatality in Arizona.

I wanted to update it, because there have been several new articles that have come out that back up my analysis about those who might have potential responsibility.

First, I noted that a potential defendant was the “driver” of the car should it be proven that the driver didn’t act in a proper manner.  Since the post, Arizona authorities have released the dash cam video from the Uber vehicle that shows the driver was not paying attention at all, looking down for several seconds before the wreck (I’m guessing at a cell phone).  This evidence would obviously support a claim against the driver (and it isn’t a surprise, driver inattention is a leading cause of car wrecks).

Second, I noted that Uber and the other technology manufacturers would face potential liability if their actions led to the wreck.  Since the post, additional evidence has come out that would support claims against both. Some of the arguments that could be made for a case against these parties are as follows:

  1. Technology experts are saying that the car’s system should have been able to pick up the pedestrian on its sensors.  As one researcher put it, “It absolutely should have been able to pick her up.  From what I see in the video, it sure looks like the car is at fault, not the pedestrian.”  Another good article on this topic is from Scientific American, “Uber Self-Driving Car Fatality Reveals the Technology’s Blind Spots”.
  2. Uber was having troubles with the technology even before the fatality.  This story says that Uber’s cars had trouble driving through construction zones and driving next to tall vehicles, like big rigs (which seem to be about 1/2 the vehicles on our Texas highways).  The same story suggest that the drivers in Uber’s cars had to intervene to avoid wrecks far more often than drivers of other self-driving cars.
  3. Volvo, the manufacturer of the vehicle in the wreck, is now claiming that Uber disabled the safety features that came with the Volvo.  (Cases can become fun when you get the parties pointing fingers at one another, as this would indicate is about to start happening here.)

I don’t know how things will shake out, but these are the types of arguments that we would be making as lawyers to try and determine who might have responsibility for the death in this matter.  so far, the evidence is revealing that each potential party I originally identified might have some fault.

A couple of other interesting things are arising out of the event.

Yesterday, the Arizona governor, who couldn’t welcome autonomous vehicles fast enough before this wreck, suspended Uber’s testing of self-driving cars.   Other companies are also slowing their testing of self-driving cars.

Perhaps the one good thing that might come of this tragedy is a re-examination of what regulations are necessary to protect the public.  In recent years, our concerns have been that states and the federal government would enact laws making it difficult to hold manufacturers accountable for the problems caused by self-driving cars.  For example, California proposed a rule (that was scrapped) that would have let companies avoid liability if the car had not been maintained to manufacturer specifications.  This could have resulted in letting them off the hook if your car’s sensors were dirty, even if the accident was caused by something else.

This event may cause regulators and legislators to take a second look, and to take actions to make sure these cars make our roads safer, but to also allow accountability when the inevitable failures occur.  For example, the wreck prompted an article from Bloomberg offering the opinion that “Regulators Are Asleep At The Wheel On Self-Driving Cars.” 

As I said, I don’t know how this will shake out, but there are interesting issues that we’ll see arise over and over.

 

 

Posted on: March 27, 2018 |

Uber Self-Driving Car Death — A Potential Law School Exam Question

By now, you’ve probably heard about the death that resulted from a car wreck involving an Uber self-driving car.  The tragic facts surrounding the wreck would make a great law school exam question.

What do I mean by that?  In law school, exam questions were designed to present as many complicating issues in a case as possible.  This situation presents a lot of interesting legal questions.

Here are the facts:

On Sunday night, Rafael Vasquez, an Uber test driver, was behind the wheel of an Uber Volvo XC90, which was driving in autonomous (self-driving) mode.  Elaine Herzberg stepped into the street while walking her bicycle.  The car hit Herzberg, killing her.

Interesting questions here

1) Who might be liable for the claim?

In Texas, there would be several potential parties who might be liable for the claim.

The “driver’ of the car

The most obvious potential defendant in any car wreck case is the driver of the car.  In this case, the “driver” was Rafaela Vasquez.  While the car was in self-driving mode, the driver is there for protection.  A good case can probably be made that she didn’t uphold her responsibilities, and that contributed to the wreck.

Uber

Another obvious potential defendant is Uber.  In this case, Uber may be responsible on several levels.

First, in Texas, a company has respondeat superior liability — it is liable for the negligence of its employees when the negligence is done while in the course and scope of the employee’s employment.  Here, if Ms. Vasquez was negligent, then that negligence would likely be imputed to Uber.

Second, Uber would have its own liability for its own conduct.  In Texas, employers can also be negligent for improper hiring, training and supervision.  That is particularly applicable here.  At least one article notes that Ms. Vasquez had a sketchy driver’s history.   Her history allegedly includes several prior driving violatios and even having had served jail time for attempted armed robbery.

Finally, Uber may have liability based on the technology in the car.  If Uber helped design the hardware or software running the car, and some failure of that software or hardware contributed to the wreck, then Uber would also likely have liability based on those failing.

Other hardware or software manufacturers

In this case, it appears likely that there was also a failure of the hardware or software involved so that it failed to detect a risk and failed to reduce the risk.  Articles have mentioned that the cars are supposed to be programmed to find pedestrians and potential hazards, even in the dark.  It appears that the car failed in that regards here.  If that’s the case, then the hardware or software manufacturers likely have some liability as well.

2) Does Elaine Herzberg’s negligence for not using a cross walk bar her claim?

Almost immediately after the wreck, people starting victim blaming here, arguing that Ms. Herzberg was responsible for the wreck because she didn’t use the cross walk that was up the street.   If that’s true, would it bar Ms. Herzberg’s case?

Not in Texas.  Texas is a comparative responsibility state.  While Ms. Herzberg’s conduct wouldn’t necessarily bar her claim, it could reduce an award and even bar it in certain circumstances.  In Texas, a jury would start by being asked two questions.  One, did the negligence of the parties contribute to the wreck?  And two, the jury would be required to allocate a percentage responsibility amongst all of those parties the jury finds to be responsible.

Generally, if a jury finds Ms. Herzberg was negligent, then the reward would be reduced by the percentage of her responsibility.  For example, if the jury found Ms. Herzberg was one-third liable for the wreck, the ultimate award would be reduced by one-third.

Having said that, if Ms. Herzberg is found to be more than 50% responsible for the wreck, she would be completely barred from bringing a claim.

There are other potnetial issues, usch as the Uber insurance policy and what policies pay out how much oney.  But we may never know the answer to those questions.

 

 

Texas’s Texting While Driving Ban Goes Into Affect Today. Will It Make You Less Safe?

Today, Texas’s new texting while driving ban goes into affect.  For the first time, Texas will have a state-wide ban.  A violation of the ban is a misdemeanor, with fines between $25 and $99 for first time offenders and $100 to $200 for repeat offenders.

For years, I’ve been critical of Texas officials for their failure to adopt a state-wide texting while driving ban.  So, I should be excited that a new ban is going into affect, right?

I’m not.  I think a good argument can be made that Texas’s ban makes many of you less safe.

What do I mean?

While the state refused to take the lead on this critical safety measure, many of our cities and towns didn’t.  Prior to the state-wide ban, over forty Texas cities and towns, including Austin and San Antonio, had their own limits on the use of cell phones.  Many of these bans are more strict than the Texas ban in two ways.

First, the Texas ban merely limits the use reading, writing, or sending an electronic message  (it’s not clear if this just covers texts and emails or will it cover reading websites as well?). Many of the local ordinancesgo further than that.  For example, many cities like Austin not only banned texting while driving, but also banned the use of phones (and other handheld devices) without a hands-free system (like a bluetooth headphone).  So many of these local ordinances banned more types of activities that have been found to be unsafe.

Second, many of the local fines are more expensive than the new Texas fine.  For example, in Austin, the fine for a first offender starts at $200, and the maximum fine can go up to $500.  In Kyle, the fine is between $100 and $500 for a first offense, between $200 and $500 for a second offense, and $500 for a third offense.

Unfortunately, the new Texas law also contains a pre-emption clause that overrides the local laws “relating to the use of a portable wireless  communication device by the operator of a motor vehicle to read, write, or send an electronic message.”

That means that for many cities throughout the state, including Austin, the punishment for texting while driving — the fines—are becoming more lenient.  It may also mean that the more broad bans requiring hands-free devices may also be overturned — we’ll have to wait to see how courts interpret the statutes.

But regardless of this, for many parts of the state,  including Austin, there is actually less of an incentive to text and drive today than there was yesterday.

This is a mistake.  The dangers of texting while driving are well known, and it is a factor in probably more than half of the car wreck and trucking accident cases that our firm handles.  Studies show it is more dangerous than drinking and driving.  While I applaud the state for finally acting, they should have allowed those communities who want even stronger fines to keep those fines in place.  We want to discourage as much texting and driving as we can.

If you want to read the Texas law, it is available here.

Will Victims Of Hurricane Harvey Be Victimized Twice?

Our thoughts and prayers are with all of those in the path of Hurricane Harvey.   The potential damage  is simply heartbreaking.

Unfortunately, due to the timing of the storm, it also makes it likely that many of you who suffer property damage will be victimized twice.

Why do I say that?

Last legislative session, the Texas legislature passed a law that severely limited the rights of many property owners making claims against their insurance carriers.  Unfortunately, that bill goes into affect and covers lawsuits filed starting on September 1, 2017.

That means that some victims of Hurricane Harvey will have less than a week to get their lawsuits on file without having their rights limited by the new law.  That’s hard to do, and it makes it imperative that a potential claimant seeks and talks to a windstorm lawyer as soon as possible.

Now, if you’re a potential claimant and you can’t file a lawsuit before the September 1, 2017 deadline, it doesn’t mean that you don’t have to act.  Arguably, one important portion of the law only goes into affect for CLAIMS (as opposed to lawsuits) filed after September 1, 2017.  To try and at least save those rights, you should send your insurance agent or company a written notice of the claim BEFORE FRIDAY, and keep a copy of the notice (fax receipt is probably best).

If you don’t do either of these things, you still have a claim so don’t give up — you should still talk to a lawyer even after that deadline.  But if you had your preferences, you’d prefer to have your case on file before the new law goes into affect.

For those of you who have losses in our coastal counties, those rules are a little different.  Contact a lawyer as soon as possible to learn about your rights on those claims.

 

Posted on: August 25, 2017 |

I’ve Handled Dog Attacks, But A Pig Attack? What’s The Law On That?

Over the years, I’ve handled a number of dog attack cases, but last week, I read a story about a 3 year old Alabama girl who was injured when she was attacked by a neighbor’s pig.

I don’t want to make light of the story because it sounds like the girl suffered severe injuries.  But it did get me wondering what the law is on pig attacks.  Would a claim against a pig owner be the same as a claim against a dog owner?

Trying to satisfy my curiosity, I did a quick search on Westlaw to see what the law on this issue says.  Amazingly, I don’t think there are any Texas cases involving pig attacks (though I did see something that said pig bites are fourth most common bites reported by vets behind cats, dogs and horses).

After some shrewd legal analysis, I’ve come to the opinion that elements of a pig attack case are the same as a dog attack case.  I’ll spare you the details, but know that what a person making a claim here could probably pursue a strict liability claim if the pig has a history of violence or dangerous behavior or a claim based on the pig owner’s failure to properly handle and secure the pig.

If the story is correct, that the pig has a history of getting out and causing trouble, then the victim probably has a good chance of prevailing under Texas law.  But this actual case happened in Alabama.  Who knows what the law is there (and I’m certainly not going to check)?

What To Make Of The New NFL Brain Injury Study

Yesterday, a new study on brain injuries in NFL players that was published in the Journal of the American Medical Association made news.

As you may have heard, the study looked at brains of 111 former NFL players, and 110 of the brains had evidence of chronic traumatic encephalopathy (CTE).

I’ve been trying to process the results, and I’ve reached a couple of conclusions.

First, you have to be careful with the results.  The only way to truly test for CTE is by doing an autopsy once the person is deceased.  In this case, all of the brains in the study were donated by the players’ families.  Obviously, most of the brains would have been donated because the family had a concern about the player’s condition before the player’s death.  Even the doctors who did the study confirm this.

Second, regardless of what I said above, the numbers are startling.  This is a lot of players who have had problems, and it’s something that we can’t ignore.  For a long time, there was a debate about whether CTE was even a real disease.  These numbers, along with other similar research, show that ti is a real problem.

Third, for safety’s sake, we need to make sure that we’re not limiting the focus to the NFL or even football.  With regards to CTE, it isn’t limited to football, soccer and hockey and at least one former major league baseball player have been diagnosed with CTE.  We need to looking at ways to make all sports safer in terms of protecting the brain.

Beyond that, we can’t let our attention be focused on CTE and sports.  Many, many more people will sustain severe brain injuries in car wrecks and falls than in sports.  We need research to continue to help us determine how brain injuries can be limited in the average person and not just in the athlete.

For more information on the new study, you can read the following articles:

 

U.T. Looking To Cut Football Brain Injuries

My University of Texas football team hasn’t been on the cutting edge of winning the last few years (and we’re hoping that’s changing), but we are on the cutting edge of trying to protect players from brain injuries.

It’s no secret that an increasingly difficulty issue in football is the rise (or at least heightened awareness of) brain injuries suffered by players.  There are some things that can be done, such as teaching proper technique and making sure that helmets are state of the art, but until now, what a school or coach can do to protect kids has been largely limited.

Now however, Riddell and Texas are taking a big step towards safety by including monitoring devices in players’ helmets.  Starting this year, all University of Texas players’ helmets will have sensors that send signals to the trainers’ hand held devices when the player sustains a significant hit in the head.  The trainer can then monitor the player and look for signs of a concussion or head injury.  Texas will be the first Power 5 school to provide this technology to every player.

This is important.  While concussions are bad, one of the biggest risks in sports is known as second impact syndrome.  Second impact syndrome occurs when a player sustains a significant blow before the brain has healed from the original concussion.  The second impact, which can occur minutes, days or weeks after the first concussion, typically causes much more severe problems than the original impact.    While some concussions are obvious, some people don’t show signs of symptoms until hours or even days after the event.  Thus, the ability to monitor the impact of a hit in real time, will make it much easier to look for problems in real time, minimizing the risk of second impact syndrome.

Now, if we can only find some technology to help us find a few more wins each year…..

 

 

Emergency Room Not Diagnosing A Concussion, Revisited

A few months ago, I wrote a short article describing why emergency rooms do such a bad job at diagnosing concussions/brain injuries: The emergency room didn’t say anything about a concussion. Does that mean I don’t have a brain injury?

Recently,  I came across a study that really quantifies the problem I discussed.

The study, primarily led by several doctors from the University of Washington, was laid out in an article entitled Accuracy of Mild Traumatic Brain Injury Diagnosis, which was published in the August 2008 issue of the Archives of Physical Medical Rehabilitation.

The article starts by noting:

Accurate identification and diagnosis of a mild TBI is the first step toward providing clinical care.

Unfortunately, despite the accurate diagnosis of a brain injury being so important, the study found that emergency rooms are not very good at making the diagnoses.

The study looked at 197 patients who had been to emergency rooms.  They looked at medical records, and in some cases interviewed the patients, to determine whether they patients had a brain injury, as defined by the Centers for Disease Control mild Traumatic Brain Injury work group.  The researchers then took those patients who were diagnosed with a brain injury and looked at the patients’ emergency room records to see what was diagnosed in the emergency room.

The results were startling.

The emergency room doctors failed to make a diagnoses of a head injury or concussion in 56% of the patients who were later determined to have a brain injury.

That’s a stunning number.

There are some things that can help improve the accuracy of the emergency department physicians.  If the patient complained in the emergency room about confusion, feeling dazed, or having memory problems, then the diagnoses was more accurate.  However, even with those findings, the emergency department still missed the diagnoses on 37% of the patients.  That’s still a substantial number of patients who have a brain injury that doctors are missing.

Oddly, the emergency room physicians’ diagnoses weren’t dramatically better even when the patient reported a loss of consciousness — which should be a red flag.  The doctors still failed to make the proper diagnoses of a head injury in about 50% of the patients who had told the doctors that they had lost consciousness.

This means that you have to be diligent about noticing symptoms.  I’ve repeatedly written that misdiagnoses is a problem and that the best way to find the problem and to get proper treatment for the problem is for someone close to the person to look for symptoms.

To learn more details about potential symptoms, you can read our other articles:

If you or a loved one has sustained a brain injury in an accident, please call us at (512)476-4944 and we’d be happy to see if we can help.

Brain Injuries: New Study Finds Fewer People Recover From Post-Concussive Syndrome

The April 2017 issue of the Journal of Neurotrauma reports on a new study about post-concussion syndrome.

The study followed 110 patients who had post-concussive syndrome symptoms for more than three months, and the findings were stunning.  Of those patients, only 27% made a full recovery.  Of the 27% who made a recovery, 67% made a recovery within the first year.  And no one who had symptoms over three years ever made a complete recovery.

For those groups that didn’t recover, the continuing symptoms (in order of frequency) were:

  • Headache
  • Difficulty concentrating
  • Fatigue
  • Dazed/don’t feel right/in a fog
  • Pressure in the head
  • Sensitivity to light
  • Difficulty remembering events
  • Neck pain
  • Sensitivity to noise
  • Depression/sadness
  • Insomnia/sleep disturbance
  • Irritability
  • Anxiety
  • Frustration
  • Feeling slowed down
  • Noise in the ears
  • Vision changes
  • Lightheadedness
  • Imbalance
  • More emotional
  • Dizziness
  • Nausea
  • Increased sensitivity to alcohol
  • Confusion
  • Personality changes
  • Vivid dreams
  • Numbness
  • Vertigo
  • Panic attacks
  • Disorientation
  • Stomach ache
  • Loss of appetite
  • Slurred speech
  • Seizures
  • Vomiting

These findings are significant to our brain injury cases.

Most insurance companies argue that brain injuries typically heal themselves and symptoms disappear after six months or a year. The insurance companies use that argument to reduce the value of the claim.

This study refutes that.  If a client has had symptoms lasting more than three months, then this study is evidence that the client will likely never make a full recovery.   Obviously, if an injury is permanent then the value of the case is higher.

The study is also interesting because it has a good list of symptoms of a brain injury.  It’s important for people to know these symptoms to help them recognize when they might have a brain injury.

Another interesting fact was the distribution of the symptoms.  Generally, post concussion syndrome has three classes of symptoms:

  1. Cognitive symptoms — affect your thinking
  2. Affective symptoms — affect your mood (depression, irritability, etc)
  3. Somatic symptoms — separate symptoms (headaches, light sensitivity, etc).

The study found that the persisting symptoms were quite evenly distributed between the three classes of symptoms.

 

 

Thanks For Your Support – Here’s Some Of Who You’re Helping

The support we get from our clients and referral sources allow us to support a number of other good causes both in Austin and around the world.  Today, I thought I would let you know about some of the programs you’re supporting.

  1. Friends of Scouting

As some you know, my son is a Boy Scout, and he’s had a number of great experiences through scouting.  He’s been to summer camps in California and Maine, and this year, he and I are going on a 10 day backpacking trip at the Scout mecca, Philmont Scout Ranch in New Mexico.

But we also know that too many kids don’t get those opportunities.  As a result, for the last few years, our firm has made significant donations to Friends of Scouting.  This group helps support Scouting opportunities for low income kids throughout Central Texas.  I hope some of these kids will get the same benefits that my son receives.  You can learn more about Scouting in the Central Texas area by clicking the link here.

 

  1. Justice For Our Neighbors

 Justice For Our Neighbors is a United Methodist Church based non-profit that provides free or low cost legal services on immigration related issues to immigrants.  I was one of three co-founders who helped bring JFON to Austin three years ago.  Since that time, JFON has served numerous clients.  Now, the group specializes in helping unaccompanied minors learn about and exercise their rights.  While I acknowledge that immigration is a bit controversial, as a lawyer, one thing I’m clear about is that rights matter.  When our country grants people rights, the people should be able to exercise those rights.  And that’s what JFON does — helps people exercise their rights.

 

  1. Free Store Austin

The Free Store is another United Methodist related non-profit that I helped start and that you have helped us support.  Like it sounds, it takes items and gives them away to anyone who needs them for free.  But the store is about much more than that. The store creates opportunities for volunteers to meet and get to know people who are very different from the volunteers.  Creating a diverse community is really what this group strives to create.

  1. Zoe Helps

Zoe is an international group that helps orphans in Africa and other countries become self-sufficient.  Zoe organizes the orphans into working groups of 60-100 kids.  The organization then trains the kids about health, entrepreneurship, and more.  Zoe also helps the kids choose and start businesses.  About 85% of the kids who complete the three year program are self-sufficient, help support other kids, and are leaders in their communities.  In the last couple of months, Zoe was named one of the 100 most innovative non-profits in the world.

  1. Seedling Foundation

The Seedling Foundation is a local non-profit that provides mentors to children whose care-givers are incarcerated.  Mentors meet with the kids once a week to check in the with the kids and to be a consistent, stabilizing force in the kids’ lives.  This is my 10th year to be a mentor through the Seedling Foundation, including my eighth year with my current mentee.  I started mentoring him in Pre-K and have now moved with him up to middle school.  I enjoy the mentoring process and encourage anyone with a little free time to get involved with Seedling.

There are many more things you’re helping us support, but these are some of the biggest.  We hope you’ll continue to think of us and refer your friends and family members so we can continue to do this good work together.

Thanks,

Brooks Schuelke

 

 

Posted on: May 1, 2017 |

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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