Every driver has a duty to watch the road and see what’s there to be seen. If a driver does not, even for an instant, and as a result hurts someone, the driver is responsible for the harm. Additionally, every driver has a duty to drive at a speed that is reasonable under the circumstances and keep his vehicle under control at all times. If a driver does not, and as a result hurts someone, the driver is responsible for the harm.
Many of us have probably used this exact phrase in opening statement, possibly as your opening lines. Having laid those rules out for the jury, we then provide evidence so that the jury can determine if a rule was violated. While the statements of the drivers and witnesses are crucial, objective evidence can often be more effective and persuasive.
Three types of objective evidence that I will discuss in this article include: event data recorders (black boxes), cell phone records and video of the collision. Each of these can be extremely helpful at trial and two of the three can be obtained with very little expense. This makes them helpful even in small car crash cases.
Event Data Recorders
An event data recorder is a device that records information regarding a vehicles speed immediately before and after crashes or that records the speed change (acceleration or Delta-V). Vehicles equipped with airbags have an electronic control device that determines when the airbag should be deployed based on various inputs within components of the vehicle. Most vehicles contain EDR and the National Highway Traffic Safety Administration (NHTSA) in 2006 passed a rule standardizing the information collected on EDR’s manufactured after 2013. All EDR’s must record the following information to meet this standard:
- Delta-V or change in speed
- Maximum delta-V or maximum forward speed crash
- Time, maximum delta-V or time from the maximum change in speed
- Speed of vehicle
- Engine throttle % (how far pedal was pressed)
- If brakes were applied
- Ignition cycle at crash
- Ignition cycle at time of EDR download
- Seat belt status of driver
- If front airbag warning lamp was on
- Front airbag deployment data (time to deploy or times of multiple deployments)
- Number of crashes
- Time between events (if more than one crash)
- If all the data was recorded
Additionally, many of these recorders also collect information on engine speed, stability control or antilock braking systems, status of passengers seat belts and deployment data on airbags other than front airbags. You will need to obtain an expert to download the data and this may or may not be the same person you retain for accident reconstruction. If a full accident reconstruction is not justified either because of costs or for some other reason, obtaining just the event data can be much less expensive.
You will also need permission from the person or entity who owned the vehicle at the time of the collision or their authorized representative. Again, if you contemplate wanting the event data, send a preservation request to the vehicle owner, driver and insurance company.
For the most part, EDR data should be admissible in court but must satisfy the Daubert standard. A few of jurisdictions have appellate decisions that specifically allowed EDR data and EDR’s are both generally accepted as reliable and valid. In 2005 a Florida Appellate Court found automobile sensing diagnostic module’s to be generally accepted in relevant scientific fields and other courts have similarly rejected challenges to their admissibility based on Daubert.
Distracted Driving and Cell Phone Data
Distracted driving has become an increasing problem on our roads and a serious harm to public safety. Each day more than 8 people are killed and more than 1,000 people are injured in car crashes involving a distracted driver.
Types of distractions include talking on a cellphone, texting, interacting with one or more passengers, grooming, eating and drinking, reaching for something in the car or adjusting the radio or cd. Texting is the most alarming of these types of distractions for a number of reasons. Texting requires visual, manual and cognitive attention. Texting has exploded in use and an estimated 660,000 drivers are using cell phones at any given daylight moment while the average time a drivers eyes are off the road while texting is 5 seconds.
The problems with texting and driving reach even more epidemic proportions with regard to teen drivers. A 2015 study by the AAA Foundation for Traffic Safety estimated that 6 out of 10 car crashes with teen drivers involved distracted driving. A quarter of teens respond to text messages once or more every time they drive while 20 % admit to having extended multi-message text conversations while driving.
Arkansas law prohibits all drivers from texting while driving except in emergencies. Arkansas also prohibits drivers under 18 from using a cell phone and bans handheld devices for drivers 18-21. The use of a cell phone, even if not prohibited by law, can be used to show inattentiveness at trial. Cell phone records can be obtained through written discovery. Generally the easiest way to obtain such information is to provide a cell phone authorization form for defendant to sign that is limited to the day of the collision and an hour or 2 before and after the estimated time of the wreck. The cell phone authorization should also request data downloads and text messages.
You often need to take early steps to preserve the actual text messages sent that day. Cell phone companies do not keep texting records for very long. Verizon, for example, claims to keep text message details for up to 1 year and actual text message content for 3-5 days. I recommend sending a preservation letter to all drivers and their insurance company adjuster, asking them not to delete any text messages sent or received the day of the collision. If the case moves to litigation and if you take the defendant’s deposition, you can request they bring the actual phone with them, and allow inspection of the text messages around the time of the collision. Or if a deposition is not being taken, you can include a request for production that asks them to bring the phone to their attorney’s office on a particular day so you can inspect it.
There may be some additional nuggets on the defendant’s cell phone in addition to the call log and the text messages. There are many apps which record a user’s trips, either for mileage calculations/reimbursements. Examples include:
- Auto Miles
- Shoeboxed Receipt and Mileage Tracker
There are also apps that monitor the driver, often used to check your kid’s driving habits but also used to help a person defend him/herself other bad drivers. Examples of these apps include
- My Max Speed
- Speedometer Speed Box
- Safe Driver
As with call content and text message data, you should include specific requests in your preservation letter about these apps or similar apps the defendant may have on their phone. In litigation this evidence can be included in your requests for production and/or brought to the deposition.
If your client was involved in a collision near an intersection, odds are decent that video exists of the collision. The first area to investigate would be any traffic cameras that are in place by a municipality, city police or state police. Arkansas law prohibits the use of red light cameras by police for the purpose of ticketing offenders and, as a result, there are not a lot of cameras being used. The majority of cameras in Little Rock, for example, are sensors with no pictures or surveillance. There are, however, select surveillance cameras in undisclosed locations but footage is deleted 10 days after it is recorded. Thus it is imperative to make a phone call as soon as possible to the police department and speak with an officer or someone in the traffic engineering department.
Our office has also had some success in obtaining video from businesses that border the intersection. Many businesses have video cameras pointing to their parking lot for security purposes. Gas stations and banks seem much more likely to have this equipment. Often a letter requesting the video for a specific time period will be sufficient to obtain a copy although some will require a subpoena. Make sure to send a preservation letter either to a police department or a business asking them to preserve the video. A visit to the scene of the collision may reveal what businesses have cameras pointing towards the road. Sometimes just looking at the intersection with an online mapping program such as google maps or bing maps and then calling the businesses around the point of impact will result in a helpful video.
One additional tip on intersection video, even if the video does not show the actual light, you can often still determine the color of the light by the traffic patterns. We recently settled a red light case where we found video from a nearby bank that pointed towards the intersection. The bank wouldn’t voluntarily relinquish the video without a subpoena but they did agree to preserve it until litigation was filed. Once the case moved to litigation a subpoena was issued and the video was produced. The defense was quick to point out that the video didn’t show the light. However, it did show when westbound traffic stopped and when westbound traffic proceeded through the intersection. By going back 15 minutes, the light cycle could be timed and a determination could then be made as to who had the green light at the time of the collision. Once this was done the defense accepted liability at that point and the case settled.
There are many relatively inexpensive tools we can use to hold drivers accountable for the harms they cause. Gathering evidence from EDR’s, cell phone data, videos and other objective sources help us identify each and every action the defendant took that endangered the public and our client specifically while also helping us show juries why our clients version of the facts is more accurate