Harry Stump, Esq.

Category: Automobile

  • DOES WEARING A COVID-19 FACEMASK INCREASE THE RISK OF INJURY?

    COVID-19 facemasks, while limiting the spread of the virus, also limited the peripheral vision of the wearer.  On or about March 19, 2020, there was a nearly national COVID-19 lockdown. A facemask was widely required for appearing in public.

    There is recognition in the medical literature that COVID-19 related mouth-nose masks restrict the visual field, even in persons with normal vision.  While the governmental requirement to wear facemasks has relaxed, there remains the possibility of future waves of virus and future requirements of facemask use when in public.  Some persons continue to wear a mask in pubic for protection.  Many health care facilities continue to require the use of facemasks to enter their premises.  Therefore, it is important to understand the effect of facemasks on vision and prevent or reduce the hazards created by them.

    Do facemasks affect healthy vision?  Is there a defined standard of facemask?  Do facemasks vary by size and shape?  Do different types of facemasks affect the visual field?  Does the position of the facemask on the face matter?  Is a nose clip on a facemask important?  What part of the visual field is affected by the wearing of a facemask?  Is the lower peripheral field of vision important for detecting and avoiding nearby hazards?  Does wearing a facemask obscure what otherwise might be considered an open and obvious hazard?  Should one wear a facemask while driving?  These are some of the issues raised and answered in the medical literature.

    In Navigating Through a COVID-19 World: Avoiding Obstacles. Klatt and Anson, J. Neurol Phys Ther. 2021, Jan: 45, this University of Pittsburgh-related article states that:

    The lower visual field is particularly important for obstacle avoidance and grocery shopping; individuals may don their mask before getting out of the car.      Thus, seeing the curb or potholes may be more challenging because of the mask while navigating across the parking lot into the store…. some masks block the lower visual field more than others…

    Their research found that some masks impair the lower visual field more than others but did not identify an “optimal” face covering.  They tested a bandana, a homemade facemask and a N95 face mask.  Their conclusion was the N95 mask wearer lost approximately an additional 3 feet of vision to observe obstacles the wearer approached.

    In Face masks, vision, and risk of falls, Kal, Young, Elmers, British Medical Journal, 2020; 371 :m4133 find that:

    “…face masks invariably block parts of the lower peripheral visual field…visual information from the lower peripheral field is important for detecting and avoiding nearby hazards, and for placing our steps safely.  Wearing a face mask reduces the wearer’s opportunity to use this important sensor information during walking and may therefore increase the chance of tripping or falling.”

    In Facemasks block lower visual field in Youth Ice Hockey; Critelli, Deminis, et. al., Frontiers in Sports and Active Living, December 2021.22, discuss:

    Wearing a facemask significantly restricts the lower field of view in youth hockey players significantly reducing the player’s ability to visualize the puck.

    In Mouth-nose masks impair the visual field of health eyes, Weber, Hohberger, et. al.  PLOS ONE, May 2021, found that visual field function was significantly impaired in the inferior-nasal sector when wearing a mouth-nose mask.  The article focused on the different types of masks used, the presence or absence of a nose clip and whether the nose clip was correctly used.  Home-made masks do not usually have a nose clip.  Failure to use a nose clip, or using one in the wrong way, were found to adversely affect the visual field.  The face mask is identified as an additional visual field artifact in the lower peripheral field.  Other visual artifacts include ocular diseases such as glaucoma.

    Many ocular and neurological diseases impair visual field.  Their visual field will be even more restricted, if these patients do wear a mask in the wrong way or wear a mask that cannot be worn closely to the nose.  An enhanced visual field loss can result in a higher risk of falling.  Incidents like falling might increase morbidity and mortality especially in elderly person…A study with young and healthy participants showed an increasing number of pedestrian collisions after constricting the participant’s visual field.  Using compensatory mechanisms (e.g. eye movements) reduced these pedestrian collisions, yet the number of collisions was still significantly increased compared to without restriction of visual field.

    The article warns against the increased risk of falling and also advises against wearing a face mask while driving:

    Therefore, wearing a mask while driving a car might be a reason for preventable accidents, even if the driver is young and healthy and uses compensatory mechanisms.

    Brick and mortar stores, among others, remained open during the face-mask requirement period as essential businesses, but, pursuant to the mask mandate, permitted access to only those persons wearing a mouth–nose mask cover.

    The medical literature indicates that wearing the COVID-19 facemask restricts the peripheral vision of the customer and causes increased falls and injuries to shoppers and other pedestrians.

    Because approximately 60% of in-store purchases are thought to be unplanned, current brick and mortar store interiors are designed to attract the attention of shoppers in order to generate sales.  Overstocked products, various displays, end caps and other attractions are designed to capture the customer’s attention.  Shoppers in a crowded store do not travel in lanes, but seem to zigzag through the aisles requiring one’s attention to avoid collisions.  A shopper’s vision is understandably divided.  Walking with one’s lower peripheral vision blocked by the COVID-19 face mask in this environment can obscure a waiting hazard.

    Would wearing a face mask be an effective answer to the open and obvious defense used against injured victims?   In the modern brick and mortar store, the owners or management of the premises should expect that a customer will not discover or realize the danger of hazards on the walkway, or will fail to protect themselves against it. This is especially true when the victim is wearing a facemask.

    “Tripping Hazards Absent” is an entry found on every Store Safety Checklist.  The National Safety Council Data Sheet I_495-Reaf 86 states that:

    1. Tripping hazards constitute one kind of unsafe condition that causes falls. Examples are merchandise left in aisles, extension cords lying across paths of travel, display, platforms, or merchandise racks protruding into traffic lanes…

    It is submitted that the prevalence of facemask wearing requires a higher degree of vigilance to eliminate tripping hazards by management of brick and mortar establishments open to the public.

    In conclusion, the current medical literature indicates that wearing the COVID-19 facemask can lead to more falling and tripping accidents while on foot and more motor vehicle accidents when the driver is wearing a facemask.  This is due to the unexpected loss of the lower peripheral vision of the wearer.

    As the wearing of facemasks may become a more common occurrence, especially for the more vulnerable parts of the population, as with any of the medical literature, FRIN (further research is needed) regarding this particular visual artifact.

     

     

     

  • AUTO ACCIDENT BROCHURE–WHAT TO DO AT THE SCENE

    STOP your car at or near the accident scene.

    CALL the police if anyone is hurt or dies.  Also, call the police if any vehicle is so badly damaged that it must be towed.

    GET the following information from the other driver or drivers involved in the accident:

    a)    Names and addresses

    b)    Telephone numbers

    c)     Driver’s license numbers

    d)     Registration numbers

    e)     Their insurance company names and policy numbers

    GET the names and addresses of:

    a)    People involved in the accident

    b)    Witnesses of the accident

    c)     Insured people

    RENDER AID: Pennsylvania law requires the driver of any vehicle involved in an accident resulting in injury or death to stop and remain at the scene until fulfilling his or her duty to give information and to render reasonable assistance to the injured.  You must give your name, address, registration number of your vehicle, and upon request exhibit your driver’s license and proof of insurance.  You must also render reasonable assistance including the making of arrangements for the conveying of the injured person(s) to a physician, surgeon or hospital if it is apparent that treatment is necessary or requested.  Failure to do this is a serious criminal offense, regardless of fault.

    If the police do not investigate an accident and someone has died or been injured, or if a vehicle must be towed, you may send a written report of the accident within five (5) days to : PA Department of Transportation Bureau of Highway Safety & Traffic Engineering Post Office Box 2047 Room 212, Transportation & Safety Building Harrisburg, PA  17105-2047.

    If possible, do not move the vehicles until a record of the accident has been made. Protect the scene, and help reroute traffic around the accident. Try to warn approaching motorists with flares, hazard lights, raising the hood of your car, etc.

    Call the police to have them come out to the accident scene to take a report.  They are much more likely to file a report about the accident if there were: 1) any laws broken, 2) any drugs or alcohol involved, 3) injury to any of the occupants requiring ambulance transportation or 4) towing of one of the vehicles is required.  If the police will not come out to the scene of the accident to file a report, you should go to the police station to file a counter report as soon as possible.  This is especially important to help you preserve your rights if you are the victim of a hit and run incident and may be making an uninsured motorist claim against the insurance company.

    Try to make sure that all drivers, passengers, pedestrians and witnesses remain at the scene of the accident.  If they insist on leaving, write down their names, addresses, phone numbers, license plate numbers, etc., and an account of what they saw.

    Take down the name of the police officer and his badge number. Ask him when and where you may pick up a copy of the accident report.

    Both drivers must identify themselves to each other.  Copy down information contained on the other driver’s license, vehicle registration and insurance card.  Likewise, identify all passengers and witnesses.  You will need their names, addresses and phone numbers.

    Make a diagram of the accident, showing the positions of the cars before, during and after impact; position and length of  skid marks, note the positions of traffic lights and street signs, estimate the respective driving speeds, and record details about traffic and the weather and road conditions. If possible, have photographs taken of the accident scene and of any damage or injury.  Photograph everything including your car, other car or cars involved, and the accident scene.  Remember to use your cell phone camera.  If you do not have a camera at the time of the incident, try to bring a camera back to the scene as soon as possible.

    Write down what everyone said after the accident, especially what was said by the other driver or drivers.

    VERY IMPORTANT: Do not admit to any fault for the accident. Do not volunteer information or comment on the accident. Do not sign any pieces of paper nor agree to pay for damages. You should, however, cooperate with police officers investigating the case. You must sign traffic tickets – but this in itself is not an admission of guilt or wrongdoing. You must take an alcohol test if requested, or risk losing your license for one year. Advise the officer of basic facts, without adding personal comments or interpretations. Keep calm.

    VERY IMPORTANT: If you are the victim of a hit and run driver or an unidentified driver who forces you to take evasive action and injure yourself or others, you must report this incident to the police department and to your own insurance company within thirty (30) days or you will lose your rights.  Check your insurance policy immediately.  One major insurer requires that you must give the insurance company a sworn statement within 30 days.  This sworn statement must state that the insured has a legal action due to the accident.  It must also include facts to support the action.

    As soon after the accident as possible, it would be a good idea to be checked out by the emergency room or a doctor. Never refuse a suggestion from a paramedic that you allow an ambulance to take you to a trauma center.  Even if there are no initial signs of pain, there might have been damage done to the neck or spinal cord. There are very fine multi-disciplinary clinics that specialize in the treatment of traumatic injuries – those which are specific to automobile accidents.

    VERY IMPORTANT:  You should talk to a personal injury lawyer at this time to clarify your rights and discuss questions of liability for the accident. 

    Do not discuss this accident on any social media. 

    You will need to contact your insurance company to report the accident and get an application for benefits. Pennsylvania law provides for no-fault medical insurance in automobile accidents up to the limits of your first party benefits.  If that benefit is exhausted the law provides that your personal health insurance is next to pay.

    This Blog is not intended to take the place of legal advice for any specific legal issue.  It is intended to be educational and illustrative.  As always, it is best to consult a lawyer who regularly practices in this area for legal advice.

     

     

  • DISTRACTED DRIVING

    Driver error is estimated to cause approximately 95% of all car accidents. Alcohol is involved in approximately 1/3 of all accidents. The National Safety Council (NSC) estimates that more than 1/4 of all auto accidents are caused by distracted driving. This estimate may be very low because of the driver reluctance to admit distraction, lack of witnesses inside the vehicle, lack of cell phone usage records by police and the large number of distractions available to a driver inside their motor vehicle.

    In five seconds of texting at 55 miles per hour, a car travels the length of a football field. Even at 30 miles per hour, the car can travel 60 yards. Two to four thousand pounds of steel, plastic and glass can cause a lot of damage to an unfortunate pedestrian or bicycle rider struck by the vehicle. There are approximately 10 million car accidents each year in the United States causing over 37,000 deaths. As many as 9,000 pedestrians and cyclists are among the dead.

    Driver distractions have been organized as Visual, Auditory, Manual and Cognitive Distractions.

    Visual distractions include what has been described as “rubber necking” such as looking at police activity on the roadside, a person outside of the vehicle, roadside animals, bill boards, a dropped object inside the vehicle, a passenger in the vehicle, the family dog, an insect, changing the radio, looking for the cell phone or other papers.

    Auditory distractions include talking of a cellphone (hand- held or hands-free), speaking or arguing with passengers

    Manual distractions include texting, reaching for or dialing a cell phone, manipulating the dashboard screens, changing the radio stations, inserting a CD, controlling windows or mirrors, locking the doors, adjusting mirrors, seat belts, reaching for items inside the vehicle. This also includes reaching and consuming food or beverages.

    Cognitive distractions include attempting to read or compose text messages, day dreaming, talking to or arguing with passengers, fatigue, being stressed, under the influence of drugs or alcohol, or focused on a work or personal problem.

    This list is illustrative of the problem. Law enforcement may identify some of the alcohol or drug causes. It is possible to secure cell phone records. But there is no current practical method to identify the more than thirty other causes of distracted driving.

    At some time in the future, the autonomous motor vehicle may allow all of the occupants to eat, drink, sleep, read, talk on their cell phones and play with the family dog without causing the estimated 95% of driver error caused accidents. However, the path to the fully autonomous vehicle may be further in the future than we think. It will take decades before all of the human-operated motor vehicles are off of the road. The autonomous vehicle will surely present a new set of hazards. In the interim, it will be important to focus on the life-saving car technologies that are currently available and ensure that they are required in pre-autonomous motor vehicles.

  • THE PHANTOM, UNIDENTIFIED OR HIT AND RUN DRIVER

    One client was riding her motorcycle on a Nevada road when she ran over an object that had been previously dropped from an unsecured load from an unidentified vehicle. She was seriously injured and life-flighted to a trauma center hospital.

    Another client was injured when forced off of the roadway and into a tree by a vehicle driving on the wrong side of the road. The negligent driver never stopped and could not be identified.

    A third client was injured by a person who failed to pay their automobile insurance premium and was driving without any automobile insurance.

    It was fortunate that each of the three client’s automobile insurance policy included uninsured motorist coverage. When injured by a phantom, unidentified or hit and run driver, it is very important to comply with the following rules.

    If you are the victim of a hit and run driver or an unidentified driver who forces you to take evasive action and injure yourself or others, you must report this incident to the police department and to your own insurance company within thirty (30) days or you will lose your rights.  Check your insurance policy immediately.  One major insurer requires that you must give the insurance company a sworn statement within 30 days.  This sworn statement must state that the insured has a legal action due to the accident.  It must also include facts to support the action.  Source: 75 Pa.C.S.A. § 1702. Definition of uninsured motor vehicle (3).

    It is also important to buy as much uninsured and underinsured motorist coverage as you can afford. Often an insurance agent will give you a form to reduce this coverage to “save you money.”  Never reduce this coverage.  Purchase stacking to double or triple your coverage.  This insurance coverage protects you and your family.  The phantom, unidentified or hit and run driver did not care about you or your family.

  • DOES ‘SPRING FORWARD’ INCREASE CAR ACCIDENTS?

    Will car accidents increase in the week beginning March 8, 2020?
    According to a recent University of Colorado Boulder study published in the Current Biology journal, the change to Daylight Savings Time in the spring results in a 6% to 8% increase in fatal car accidents during the following week. The relevant factors are the decrease in sleep, circadian misalignment and driving to work in the darkness are important factors.

    This effect is more pronounced in the western part of the time zones.

    Several states are considering abandoning the switch between Daylight Savings Time and Standard Time.

  • PERSONAL UMBRELLA

     If you want the maximum protection possible from your automobile insurance policy, consider asking your insurance agent for a quote for a personal umbrella policy.  This coverage typically insures you for an additional $1,000,000 in liability, uninsured and underinsured motorist coverage.  While many people are not currently in the market for this amount of insurance coverage, it is a fairly inexpensive way to protect your own future earning capacity against accidental loss in a motor vehicle accident.  A typical personal umbrella policy requires you to carry $500,000 in liability, uninsured, underinsured, and homeowner’s coverage.  For an additional premium per year, your insurance overages are increased by $1,000,000. 

    Your future earning capacity is an important asset to protect.  A 30 year old wage earner, currently earning $30,000 per year, can expect to earn more than $1,000,000 over the next 35 years.  If this 30 year old person couldn’t work again because of an automobile or motorcycle accident caused by the fault of another driver, a claim could be made against that driver.  The bad news is that Pennsylvania only requires that each driver carry $15,000 in liability insurance with the average motorist carrying as little as $25,000 in coverage.  The good news is that you can protect yourself and your family with uninsured and underinsured motorist coverage.  You can also protect yourself with the personal umbrella coverage.  While this coverage may not appeal to you now, it is important to understand what is available on the insurance market.

  • THE VANISHING REMEDY IN CAR ACCIDENTS

    If you have been the victim of an automobile accident, you have certain rights which are guaranteed by law.  Basically, you have the right to be returned to the same condition that you were in before the accident occurred.

     

    ¨  You have the right:         To the very best medical care available with no out-of-pocket expense to you.

    ¨  You have the right:         To recover any lost wages or loss of earning capacity which may have resulted from the incident.

    ¨  You have the right:         To be compensated for any pain, suffering and inconvenience from the incident.   

    ¨  You have the right:         To an equitable settlement for permanent disabilities which might have resulted from the incident.                           .

    These are your rights but there has to be a source of compensation to provide an adequate remedy for these rights.  Pennsylvania requires that all motor vehicles be covered by automobile insurance.  But the state minimum coverage is only $15,000-$30,000.  Automobile insurance representatives have advised that the average coverage in Pennsylvania may be as low as $25,000-$50,000.  That means a person insured with the state minimum auto insurance only has a $15,000 policy to secure your above rights.  This was the minimum coverage required in 1974 and remains the minimum coverage today.  If this were indexed for inflation, the minimum coverage would be approximately $75,000-$150,000.

    Pennsylvania State Representative Aaron D. Kaufer has proposed legislation that would raise the minimum coverage to $30,000-$60,000 with $10,000 in property damage.  While this is still inadequate, at least it is a step forward.

    To put this in perspective, in 1974 the average cost of an automobile was under $4,000 and a candy bar cost 15 cents.  Now, the average cost of an automobile is approximately $35,000.   The state minimum medical coverage in Pennsylvania has remained at $5,000 since the 1990’s.  Health insurers are now seeking to claw back every dollar spent on accident related health care costs 

    According to Representative Kaufer, Pennsylvania law provides for the second lowest auto insurance limits in the United States. Only Florida is lower with $10,000-$20,000 limits.

    The good news is that you can protect your family, yourself and your earning capacity from this problem in the auto accident situation by buying uninsured motorist coverage and underinsured motorist coverage with stacking, and a personal umbrella. 

     

  • CAR ACCIDENTS, HEART & LUNG BENEFITS AND SUBROGATION

    This office ended the unjust subrogation of Heart and Lung  from police officers and other public safety personnel involved in Pennsylvania auto accidents.  In 1993, when Workers’ Compensation benefits were again subjected to subrogation in auto accident cases, governments began to claim subrogation rights from Heart & Lung benefits paid to public safety personnel.

    Heart and Lung Act benefits were created by the Legislature to provide full payment of salary to police officers, firemen and other law enforcement officers who are injured in the performance of their duties and by reason thereof are temporarily incapacitated from performing their duties.  These benefits are different from Workers’ Compensation benefits.

    Based upon a statutory construction argument, this office was able to convince the City of Pittsburgh to waive Heart and Lung subrogation in car accident cases.  When the City of Pittsburgh changed its position and attempted to collect this subrogation, this office filed a Declaratory Judgment lawsuit against the City of Pittsburgh.  Despite the fact that the Commonwealth Court had already ruled against public safety workers on this same issue in Brown v. Rosenberger, 723 A.2d 745 (Pa.Cmwlth. 1999), Allegheny County Common Pleas Judge W. Terrence O’Brien took the unusual step of disagreeing with controlling appellate authority and ruled in our favor.

    The City of Pittsburgh appealed to the Commonwealth Court, which convened a Court en banc, consisting of seven judges.  The Commonwealth Court ruled 6-1 against our position.  Judge Doris Smith-Ribner wrote a vigorous dissenting opinion in Oliver v. City of Pittsburgh, 977 A.2d 1232 (Pa.Cmwlth.  2009)

    This office appealed to the Pennsylvania Supreme Court, which unanimously reversed the Commonwealth Court opinion and ruled in favor of the public safety workers in Oliver v. City of Pittsburgh, 11 A.3d 960 (Pa 2011). This case is the basis for the elimination of the unjustified taking of personal injury settlement money from a long list of law enforcement personnel including: city, county, local and state police; LCB enforcement officers or investigators; parole agents; drug enforcement officers; park guards, firemen; deputy sheriffs; Game Commission and Fish and Boat Commission enforcement officers or investigators; and many additional state, local and county law enforcement.

    This is important because these liens can be large compared to the third party liability insurance available in many cases.  Pennsylvania’s minimum auto liability insurance limits of $15,000-$30,000 have not been raised since the last century, while medical costs have skyrocketed.  Many injured public safety worker occupy motor vehicles not covered by underinsured motorist coverage.  An injured person could be left without a remedy for their injuries after paying subrogation costs.  It is time for the Pennsylvania Legislature to end subrogation for Workers’ Compensation benefits in auto accidents.

  • HOW TO AVOID LIMITED TORT

    Having Full Tort is best because Limited Tort may limit your right to collect pain and suffering damages.  But having Limited Tort on your insurance policy papers does not necessarily mean that you do not have a good case.  Some, but not all, of the exceptions that might help you are as follows:

    • Can your insurance company prove you chose Limited Tort?
    • Was the other driver convicted or on ARD for driving under the influence?
    • Did the other car have out-of-state plates?
    • Did you occupy a business, leased, rental or governmental vehicle?
    • Did you occupy a vehicle used as a public conveyance or bus?
    • Did you suffer a serious injury?
    • Did you suffer a loss of a bodily function, temporary or permanent?
    • Did you suffer a loss of wages?
    • Are you unable to return to your employment?
    • Do you have large medical bills?
    • Did Medicare, Medicaid, the VA or Workers’ Compensation pay your bills?
    • Did you occupy a heavy vehicle weighing more than 9,000 pounds?
    • Did you occupy public transportation, cab, Uber or Lyft type vehicle?
    • Did you occupy a recreation vehicle for off road use?
    • Did you occupy a vehicle insured by a garage, auto sales, repair shop, or other such business?
    • Did you occupy a bicycle?
    • Were you a pedestrian?

    Some of the other exceptions are when the accident is caused by a design or manufacturing defect, a service or maintenance repair mistake, an intentional or uninsured driver.

    You are Limited Tort if you selected it or own a currently registered private passenger motor vehicle without having automobile insurance.

    You are Full Tort if you are not the owner of a currently registered private passenger motor vehicle and not a named insured under any private passenger motor vehicle or insured as a resident relative (spouse, relative, or minor) of a named insured with Limited Tort

    It is always better to check your automobile insurance policy before an accident.  Your choices of Limited Tort, low medical benefits, low uninsured or under-insured motorist benefits, rejection of stacking, rejection of wage loss protection affect not only yourself, but a spouse and all relatives, including minor children, who reside in the household of the named insured.  This Blog is not intended to take the place of legal advice for any specific legal issue.  It is intended to be educational and illustrative of a Pennsylvania legal concept.  As always, it is best to consult a lawyer who regularly practices in this area for legal advice

  • WHY YOU NEED UNDERINSURED MOTORIST COVERAGE

    If you are in a serious car accident and cannot work for a long period of time, Uninsured Motorist Coverage protects your family against the driver who may have low limits of liability insurance coverage.  Pennsylvania law only requires that a driver have $15,000- $30,000 in liability insurance coverage.  The $15,000 pays for injuries to one person, while the $30,000 represents the total available for one accident.  These minimum limits have not been raised since before 1980.

    If you are injured in a car accident and cannot work, you will need money to pay your rent, mortgage, car payment, utilities, food, etc.  Never agree to a rejection or reduction of Underinsured Motorist Coverage.  Buy as much of this coverage as you can afford.

    Would you carry only $15,000 worth of fire insurance on your $100,000 home?  A person earning $30,000 a year who cannot work for the next 10 years because of a car accident would need $300,000 in available coverage.

    One of the parties in the accident must have enough liability insurance to cover your losses.

    You can hope that the other driver has a large liability policy.  Or you can protect your family and yourself by purchasing adequate uninsured motorist coverage.