Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

 A recent case in Central Florida involving Cell phone use tells us that the sequence of calls following an emergency like a car accident is very important.  It is human nature to want to report an accident to our loved ones to let them know you have been injured, and to get help.  But who you call first may create a very important clue about why the accident happened.  And the clue may be misleading.

In Hernandez v Felciano,  the plaintiff was rear ended, and called 911.  His detailed cell records were obtained and put into evidence at trial. ( A cell company can on request provide the details)  The records showed that about the time of the accident, he was on the cell with his family.  So the jury was faced with the chicken and egg problem:  which came first, the accident or the  call to his family? Was he driving erratically because he was on the phone? Based on this skimpy evidence, the jury concluded in Hernandez the plaintiff was at fault and caused himself to be rear ended.

The problem with cell phones is that they can do good: report an accident; or bad: cause an accident.

 My recommendations?

• Make sure the first call is to 911 to report the accident.  911 calls are recorded and can be obtained for later with a Public records request for use at trial if necessary.  
• However some agencies erase the calls after 30 days so don't dither or dally!  
• The time of the call on the 911 call can be compared to your cell phone bill and prove the first call was to report the accident, and then a call was made to your loved ones.
• Get a detailed copy of your cell phone bill and keep it for later.

A "Public records" request under the statute can be made for a copy of the call.  I believe a simple email request to the correct call center should be enough to get the relevant call, and it can be mailed to you in a MP3 format.  There may be a slight charge, so ask before your send your email.

You still have to know which Call center to send the request to, and that can be found by a simple Google search for "911 Call Centers."   The local one in Flagler County,  Florida where I practice has some good info on their website. The center's website says the caller's phone  location cannot be determined from a cell phone call, and you will need to verbally tell them your exact location so they can send help to you.  If the accident happens on the Interstate getting the exact address is a little more of a problem.  Many popular Cell phones now have GPS positioning information which most call centers can use to pinpoint a location. To track a person with a cell phone the cell user must have 

• the right kind of cell phone;
• be connected to the right network, and
• have the right service

I use an iphone and know I can set it up to allow its location to be found remotely.  It must be done beforehand it cannot be found with the GPS function.  

So, here is a lot of good info regarding cell phones and using them after an accident and I hope it helps save a life! Even if not lifesaving, it may help you avoid making a legal mistake by failing to call 911 first.  If you cannot call because you or your phone have been disabled or lost, may I recommend you ask a Good Samaritan/passerby to call 911 first?  And then call your loved ones for you?

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 Occasionally every plaintiff's trial lawyer will be offered  the opportunity to take a case which may look good but is really  a stinker.  The corollary is also true:  sometimes what appears to be a stinker can in reality be a good case which should be taken to court.  A recent rear end collision case which resulted in a death reminded me of this. 

The case is called Itiat v Foskey.   In that case a tow truck suddenly changed lanes on Interstate 10 in the driving rain and slowed down.  A following vehicle, operated by Mr. Itiat rear ended and crashed into the back of the tow truck and Mr. Itiat died.  Becuase it is presumed that the rear driver is at fault when he runs into the lead vehicle, many good lawyers would have turned this case down. In fact, the trial court granted the tow truck a summary judgment, which meant the Tow Truck driver was not at fault.  This holding was reversed on appeal. This means the jury gets to decide who was responsbile for the wreck, and it may decide the tow truck, or Mr. Itiat, or both were responsible.

There is a collection of cases  in Florida  where the presumption disappears because there is a plausible factual basis to explain why the Following driver was not at fault. In each of these cases there should be no directed verdict advising the Jury to hold the following driver to be negligent.

Here they are:

• an abrupt  and arbitrary stop by the lead car at a time and place where it could not be reasonably be anticipated.  This is the classic "GOTCHA RULE" which I previously wrote about in another Blog.
• an unexpected sudden lane change by a lead car, Itiat v Foskey, supra, and Allford v Cool Cargo
• a sudden mechanical failure, like a brake failure by the following car
• an illegal, and therefore unexpected stop, as on the Interstate outside municipal limits;
• a failure to remove or warn of a disabled  vehicle which has either broken down or run out of gas, in a location and at a time likely to cause a following driver to encounter it without adequate time to safely change lanes or stop.  I wrote about this type of rear ender here. 

The lesson here is that a careful investigation into the facts of a  rear end collision may reveal that the following driver was not totally, or maybe minimally at fault when he rear ends another car  in an accident.  An experienced trial attorney may be able to help.  Also, if  you have been sued for rear ending the lead vehicle, you may inadvertently waive your right to a counterclaim if it is not promptly filed.  

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The decision to let your child finally drive the family car is one requiring the ultimate exercise of good parental judgment. A parent must honestly weigh the maturity of their child, their need for independent transportation, the cost of insurance, a car, and the dangers and potential risks the child may face when you, the parent, are not there to provide continuous feedback and safe driving pointers.

Florida laws require a “responsible adult” to assume legal responsibility for the child’s negligent or willful misconduct while driving on a highway. This law is enforced when the under 18 child applies for a driver’s license by getting a “responsible adult” (usually a parent) to sign the application with them. F.S. 316.09 says that the child’s conduct is “imputed” to the responsible adult. In addition, the child’s driver’s license may be suspended if the under 18 child drops out of school. F.S. 322.091

Oprah’s website about the “No Phone Zone” is an excellent and fun place to help start a conversation with your child about the dangers of texting or talking on the cell phone while driving. I recommend you and your child together take a look at http://www.oprah.com/packages/no-phone-zone.html. It has some really fun quizzes to test your knowledge about texting or talking on a cell phone. It gives really good examples your child can identify with about the very real dangers of distracted driving.

It only takes a second or two to change a life forever. I took the quiz and only got 2 out of 5 questions right!

For a discussion explaining Texting and Negligence, look at my website at http://www.palmcoastinjurylaw.com/2010/02/articles/understanding-the-legal-proces/understanding-texting-and-negligence/

A parent who signs the Application with their child should obviously get insurance coverage for them. In my opinion it is better to add a child  on the family auto insurance policy rather than getting separate minimum coverage policy. Buying a car and titling it only in their name does not protect the parent from liability under FS 322.09.

In Florida a huge percent of drivers on our roads HAVE ABSOLUTELY NO INSURANCE. That means if an uninsured motorist runs a light and crashes into you or your child, no one will be able to pay the medical bills unless you have prudently bought a nice policy with “Uninsured or Underinsured” motorists coverage. Think of UM as standby insurance to protect the most important things in your life: Your family members. I can tell you from experience in handling cases for Flagler county clients, rarely do they get out of the Emergency room with less than $20,000 in hospital and doctors bills. The high cost of medical care is a reality. Thus, the need for as big a policy of Uninsured coverage as your budget will permit.

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