Who’s Responsible for a Crash in Driver-Assist Mode?

hands free tesla - who's responsible for a car crash with driver assisted steering

The driver assist technology that Tesla and other automakers have been developing to improve vehicles’ ability to respond to hazards holds the promise to usher in a new era in automotive safety. With computers sensing the car’s surroundings and tracking every part of its internal machinery, driver assist removes some of the risk of distracted driving, which kills 3,000 people per year. However, recent crashes involving Teslas in driver assist mode suggest that the technology isn’t yet perfect—and drivers might be relying on it too much.

One problem that has been plaguing the Tesla Autopilot driver assist technology is what’s referred to as “phantom braking,” when the car automatically brakes for no reason. This can cause drivers following the Tesla to rear-end it, and it’s not uncommon. Hundreds of complaints about phantom braking have been filed with the National Highway Traffic Safety Administration (NHTSA)—enough that a formal investigation was launched in 2021. In addition, numerous crashes have been reported where a Tesla has collided with emergency response teams where the first responders’ vehicles’ emergency lights are flashing.

Another problem common to all vehicles with driver assist is that the existence of the technology can actually cause drivers to become more distracted. If your vehicle automatically stays in its lane and brakes to avoid obstacles in your path, you have less incentive to stay off your phone or pay attention to the road while behind the wheel. According to a AAA report, drivers who have experience with driver assist are nearly twice as likely to engage in distracted driving.

So who’s to blame? As this blog explores, the vast majority of crashes involving cars with driver assist technology are due to human error, not a failure of the car itself. However, no technology is without its flaws, and some accidents—such as Teslas plowing into emergency lights—can be attributed to the technology, at least in part. 

That can complicate the process of gaining relief if you’re in an accident that was caused by a vehicle with driver assist, especially a robust product like Tesla’s Autopilot. If the driver of the at-fault vehicle claims that the blame lies with the driver assist technology, it can lead to a drawn out claims process that delays payments and confuses whom is the responsible party. 

If you’re the owner of a vehicle with driver assist technology, and the technology causes you to have an accident, you may be able to avoid liability for the damage caused by the accident (as well as recover losses for physical damage or bodily injury) by filing a defective product claim. To succeed, a defective product claim must show that the accident was directly caused by either a design defect or a manufacturing defect.

PFAS Health Advisories Deliver Needed Benchmarks

water pipe - EPA new regulations for PFAS in water

On June 15, 2022, the Environmental Protection Agency (EPA) released new health advisory levels for four PFAS chemicals that are found in thousands of water systems throughout the United States. These advisories set the maximum amount of the chemicals that the EPA believes represents safe drinking water for all people, representing critically needed benchmarks in the effort to prevent over-exposure.

The health advisory levels cover perfluorooctane sulfonic acid (PFOS), perfluouoctanic acid (PFOA) perfluorobutance sulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (GenX). For PFOS and PFOA, the EPA lowered the health advisory levels from 70 parts per trillion (ppt) to .02 ppt for PFOS and .004 ppt for PFOA. For PFBS and GenX, the EPA’s health advisory levels were new—standing at 2,000 ppt for PFBS and 10 ppt for GenX.

As discussed in this blog, the PFAS chemicals covered by the health advisory levels are used in a wide variety of products and are present in the manufacturing processes that produce them. That’s been the case since the 1940s, and as a result of poor process and waste management for most of that time they’re present in the air and water almost everywhere. Around manufacturing facilities that use them, they often exist in concentrations that can cause adverse health impacts—including in more than 1,500 drinking water systems across the US.

The new health advisory levels put a significantly higher burden on regulators and companies that manufacture products that contain these PFAS chemicals. As Paul Napoli of Napoli Shkolnik put it: “This is a tremendous step forward for millions of Americans at risk of developing cancer and other deadly diseases from simply drinking tap water at home they trust the government to protect.”

PFAS are unique in that they break down very slowly, and time is the enemy of evidence. Therefore, some individuals who experience health impacts from PFAS can find it challenging to prove the connection between PFAS and their ailments. If you feel you may have been sickened by PFAS, you should consult with an attorney to assess your circumstances and determine a course of legal action.

 How to Handle a Personal Injury Insurance Claim

red car flipped upside down after car accident - personal injury insurance (PIP)

If you’re injured in an accident, the most quickly accessible insurance coverage is the Personal Injury Protection (PIP) coverage from your own insurance policy. This coverage is called No Fault insurance because it applies regardless of who was at fault in the accident, so it’s available whether you caused the accident or you were in an accident caused by another person. In most states, it’s now a required coverage, meaning that it’s usually included in a standard auto policy.

Read more details about PIP in this blog post.

When you notify your agent that you’ve been in an accident and have sustained injuries, your agent should offer to open a PIP claim for you. The coverage normally pays for medical expenses, lost wages, homecare expenses, and funeral expenses and accidental death benefits. However, if you weren’t at fault in the accident and have the flexibility to do so, it’s a good idea to talk to a personal injury lawyer prior to filing a claim on your own insurance.

This is because an accident that results in injuries often leads to a significant payout from the at-fault party’s insurance company—and that company will do its best to mitigate the cost of that loss. That’s especially true when there is a dispute over who is at fault, which can happen even if the police report clearly assigns responsibility. The more benefits the insurance company is likely to have to pay, the more aggressively it may fight the claim.

In addition, PIP only covers certain costs related to injury. It does not cover damages to your vehicle. Those damages are covered either by the “property damage” coverage under the liability portion of the auto policy if the other party is injured, or by the “collision” coverage of your policy if you’re to blame. PIP also doesn’t cover punitive damages, in the event that the accident was caused by negligence. That’s always covered by the liability portion of the auto policy and, if the damage award exceeds that coverage, by an umbrella policy.

An effective personal injury lawyer will know how to deal with the insurance company to maximize your payout, as well as how to structure the claim to collect damages from every applicable line of coverage. In addition, if you find that you were misinformed about your insurance and needed coverage (such as PIP) was not offered to you, a personal injury lawyer will be able to assess your situation to ascertain whether you may have a malpractice claim under the insurance agent’s professional liability coverage.

Things to Know Before Filing a Personal Injury Lawsuit

Workers attending to injured factory worker

When an individual is injured in an accident, the first challenge is dealing with the injuries and damages the accident causes. That can be a significant ordeal, and even with insurance the out-of-pocket costs can add up quickly. When the accident is clearly another person’s fault and that person refuses to take responsibility, the injured party may file a personal injury lawsuit.

If you’re considering filing a lawsuit, this blog post discusses several important considerations. Although it focuses on New York law, the concepts apply virtually anywhere.

For example, statutes of limitations govern how long you have to file a suit. While most statutes of limitations for personal injury are three years, there is some variation from state to state. In addition, there are exceptions to the three-year limit. In New York, for example, claims against public agencies need to be filed within 90 days; and most states have liberalized the statutes of limitations for injuries that may take years to develop.

There’s also the question of who has the burden of proof. In most personal injury cases, the burden of proof rests on the plaintiff. In other words, you need to prove that the other party acted negligently, failed in a duty, or was otherwise at fault for the accident. The more complex your case is, the longer it is likely to take. If the proof is blatant, the case may settle much more quickly.

Especially in cases where the fault is obvious and the proof incontrovertible, many plaintiffs elect to pursue lawsuits on their own, thinking that they will benefit more from the settlement if they don’t have to pay an attorney. While this is technically acceptable in most jurisdictions, having an attorney on your side dramatically reduces the likelihood that your case will be dismissed due to a procedural error; it improves the presentation of evidence and the production of compelling legal briefs; and the presence of an attorney almost always increases the amount of the award significantly.

“No Surprises Act” Lawsuit Raises Fiduciary Duty Questions

The “No Surprises Act,” a federal law passed as part of the Consolidated Appropriations Act of 2021, establishes new federal protections against surprise medical bills, which usually arise when insured patients receive care from out-of-network providers, often without realizing that doing so will trigger additional out-of-pocket expenses. Opponents of the Act have argued that the language in the bill protects insurance companies more than it does consumers. Now, a long-shot lawsuit by a physician is challenging the Act on different grounds, raising questions about medical professionals’ fiduciary duty.

The lawsuit, filed by Dr. Daniel Haller, argues that the Act unfairly disadvantages him because most of the emergency care patients he sees are out-of-network, and the Act limits his ability to charge them for his services. Instead of arguing that the Act will adversely affect patients, he argues that it will adversely affect his ability to provide care by imposing guidelines on his ability to charge his preferred rates for it.

But that raises a question of a doctor’s obligations under the concept of fiduciary duty. In a fiduciary relationship, such as the one between a doctor and a patient, the doctor possesses skill, knowledge, and experience of a subject about which the patient knows little or nothing, leaving the patient wholly dependent upon the doctor’s recommendations. In that relationship the patient’s needs must be paramount: if doctors must lose money to provide adequate care for their patients, it’s their obligation to do so.

Dr. Haller’s lawsuit suggests a point of view in which the doctor’s need to charge his preferred rates are paramount. When a federal judge rules on the lawsuit on June 22, 2022, a finding in favor of Dr. Haller could lead more doctors away from strict adherence to their fiduciary duty. As this blog post discusses, if doctors order fewer tests because they aren’t certain insurance will pay for them, or if they discriminate between patients based on billing considerations, that could lead to an increase in medical malpractice occurrences.

Already, many patients experience medical professionals and hospital chains reducing their standard of care for economic reasons. If your care has been impacted by a doctor, clinic, or hospital making choices based on their bottom line, that is a breach of their fiduciary duty. Speaking to a qualified medical malpractice attorney can be an important first step in determining whether you’re owed damages for the harm caused by that breach.

Lead Poisoning Remains a Health Threat to Children

Lead Poisoning Test

Lead has been a known toxin for decades: it was banned from paint in 1978 and from gasoline in 1996. However, lead still has numerous commercial uses, including in car batteries, pigments, ammunition, weights, and radiation protection—and in pipes used to carry drinking water. That can lead to significant harm from industrial pollution; and with between 9.7 million and 12.8 million pipes containing lead in the US, lead poisoning from the water supply is still a very real concern.

Probably the most well-known example of widespread lead poisoning in recent years occurred in Flint, MI, where the city opted to draw its water from a polluted river instead of the Detroit water utility, sending toxic water into the city’s homes. After the crisis garnered widespread media attention, investigations lead to criminal indictments of municipal and state employees, and a lawsuit ended in a settlement of over $600 million.

But Flint is hardly the only example. In Benton Harbor, MI, another majority-black municipality, widespread lead poisoning came from the water pipes still used by the city—and was only discovered in 2018 after the Rev. Edward Pinkney noticed discoloration in residents’ water and raised the alarm. Even now, four years later, the city is just beginning to award contracts to replace the pipes, and residents are relying on bottled water brought in by volunteers from Indiana.

Lead also poses an occupational risk, especially for workers at smelters such as the Gopher Resources facility in Tampa, FL, where lead-laced dust has poisoned hundreds of employees. Even though the risk of lead poisoning was well known, workers were not provided adequate protective gear—or, in many cases, even told that the dust blowing through the factory contained lead.  

The effects of lead poisoning are most acute in children, who can experience behavior and learning problems, lower IQ, hyperactivity, slowed growth, hearing problems, and anemia. Lead can also accumulate in the body over time, posing a risk to unborn children whose mothers are exposed before or during their pregnancy. In adults, lead poisoning can have cardiovascular effects, such as increased blood pressure and hypertension; it can decrease kidney function; and it can create reproductive problems.

While local, state, and federal governments are mostly committed to protecting the population from lead poisoning, history tells us that real remediation only happens when media attention and lawsuits put pressure on authorities to act. If you have been exposed to lead at work, in your drinking water, or as a result of industrial pollution, you should consult a qualified attorney to pursue relief for yourself and others who may be experiencing the same effects.

Why We are a National Litigation Firm

For the partners at Napoli Shkolnik, living and working within New York State, without maintaining a nationwide presence, would certainly provide plenty of work. This is a global business and financial center with a statewide population of 19.5 million, and if it were a nation New York would have the 10th largest economy in the world. The issues causing the most harm in the United States – civil rights violations, medical and product safety issues, and the opioid crisis – aren’t contained to any particular state. They’re nationwide problems, and it requires a nationwide firm to represent victims effectively.

Taking this stance has given us the opportunity to bring our expertise and spirit to important cases inside and outside New York, like representing the citizens of Flynt, MI, after the city switched to a cheaper water source, even though they knew it would be toxic, or representing county and city governments struggling with the resource-drain of widespread opioid addiction. We’ve also been able to represent clients across the country in products liability suits and civil rights litigation—such as suing Johnson & Johnson for racially motivated marketing of dangerous talcum products.

Having a nationwide footprint also gives us the strength to take on formidable opponents. That’s been the case in opioid litigation: pharmaceutical companies, with their endless resources, fight a war of attrition in the courts, and without a deep bench of personnel and the ability to work concurrently in different jurisdictions, we’d have a hard time winning for our clients. It’s also been true in the many cases where we’ve fought for plaintiffs who have no money for lawyers. Those are the ones that matter the most to us, and it’s our nationwide reach that’s allowed us to notch victories.

In many cases, being a nationwide firm has also allowed us to bring the power and profile of a New York law firm to cases that might not otherwise get the attention or legal expertise we can provide. That’s true of environmental law cases in less developed states; it’s true of our practice in Puerto Rico; and it’s been true of numerous products liability cases over the years. Our access to expert witnesses and legal scholars who can bolster our theories has helped us win large settlements—and more importantly deliver much-needed relief to victims.

Finally, a nationwide footprint gives us an opportunity to learn about cases we otherwise might not. We pride ourselves on our lawyers’ ability to assess the viability of a case and lay out options for a plaintiff, often in the first conversation they have. And when those conversations reveal significant harms, we pride ourselves even more on our ability to deliver meaningful results.

Civil Rights Litigation: Why it Matters

Civil rights litigation plays three indispensable roles in the ongoing pursuit of a better, more just and equal society: first, it presents a way to overcome injustice where legislation lags; second, it informs the process of passing meaningful legislation to reform the policies and social norms that deprive Americans of their civil rights; and third, it provides a civil means of ensuring that powerful organizations follow the laws once they are on the books.

In 1976, Abram Chayes introduced a radical new concept in civil law—the idea that the victims of systemic injustice could create change through “public law litigation.” Before that, civil law was largely limited to moderating conflicts between two parties, but Chayes argued that those whose civil rights had been violated through social or institutional injustice could sue for systemic change. Since then, civil rights litigation has been able to succeed even where the law is vague, driving significant reform ranging from the end of orchestrated school prayer to the dismantling of legal apartheid.

Beyond winning victories in court, civil rights litigation also clarifies the nature of injustice, raises awareness among politicians and the public, and helps to inform the legislative process. This is an essential part of the American system: the United States Constitution gives the judicial broad power to “check and balance” the legislative and executive branches. And in dozens of landmark cases, such as Brown v. Board of Education and Miranda v. Arizona, civil litigation has led to better laws and a fairer system.

Finally, most civil rights laws are civil in nature. Anti-discrimination laws, for example, create a standard by which a plaintiff can sue for damages, but they do not impose criminal penalties for those who violate them. (That is, an employee who loses out on a promotion because of her race can sue for the wages she lost through discrimination, but her manager won’t face criminal charges.) That leaves civil rights litigation as the primary means for enforcing those laws. From the swath of lawsuits challenging police departments’ use-of-force guidelines to litigation protecting women of color from potentially cancerous talcum powder, civil rights litigators ensure that those who violate civil rights laws pay a price.

However, systemic violations of civil rights are often nuanced, making civil rights cases challenging. If your civil rights have been violated, working with a qualified lawyer to assess your potential suit and the damages you may be able to recover is an essential first step.

The Importance of Environmental Law to American Citizens

Young girl getting water from a tap

In the 1970s, the United States passed three major pieces of legislation which, together, make up the foundation of American environmental law: the Clean Air Act, the Clean Water Act, and the Toxic Substances Control Act. The urgency to pass all of these acts stemmed from the fact that building at a massive scale and industrial production had wreaked havoc on the environment—with disastrous implications for public health and the future. At its most basic level, the practice of Environmental Law involves protecting the American people from the environmental impacts these and other subsequent laws were enacted to prevent.

One of the challenges of effective environmental policy in the United States is the means of enforcement. Environmental laws are enforced by agencies (such as the Environmental Protection Agency), which have broad powers to study and investigate environmental impacts and punish those responsible, but which are not always able to exercise those powers effectively. 

The problem is that those powers—and the policies the EPA and other agencies pursue—are often limited by politics, by funding and staff levels, and by a philosophy of encouraging companies to remediate environmental damage over time rather than slapping them with crippling punishments. That means that many cases of severe pollution go undiscovered, sometimes for decades. In a recent Propublica series, for example, investigative reporters looked at air and water pollution in the American Southeast and discovered that in rural parts of the country polluters routinely violate emissions standards and their regulations with little or no penalty. 

That’s where environmental lawyers come in. If you’ve been impacted by toxins or pollutants in your environment, calling the EPA is a reasonable first step. But it’s not one that’s likely to lead to a speedy resolution, relief for the damages you’ve experienced, or meaningful change. That comes through environmental lawyers bringing legal action against the individuals, companies, and even government agencies that adversely impact the air, water, and land we all share.

 What the Arlo Hotel Racist Incident Illustrates

man leaving hotel lobby with suitcase - racist attack at arlo hotel

In December 2020, footage went viral showing 23-year-old Mary Ponsetto attacking 15-year-old Keyon Harrold Jr. in the lobby of New York’s Arlo Hotel because she believed he’d stolen her cell phone. (In reality, she’d left it in an Uber.) In the video, a hotel employee seems to take Ms. Ponsetto’s side, demanding that Mr. Harrold Jr. turn over his phone to prove it isn’t stolen rather than stopping her from making what are clearly aggressive and racially motivated accusations. Now, Ms. Ponsetto has pled guilty to unlawful imprisonment in the second degree as a hate crime, and the Harrold family is suing her and the Arlo Hotel over the attack.

The most obvious issue that the event illustrates is that racial bias still triggers false accusations of criminality toward black Americans, in varying degrees. When Ms. Ponsetto couldn’t find her phone, it seemed perfectly rational to her that the young black man in the hotel lobby with her must have taken it. When she told a hotel employee he’d stolen her phone, it seemed perfectly natural to the employee to take her accusation seriously and to assume that the young man—a hotel guest, who was just using his phone in the lobby—must be a criminal. In this regard, it’s a reminder: racial bias is both pervasive and systemic, and we all have an obligation to right the wrongs that it causes.

The second, perhaps more hopeful, issue that it illustrates is that things are changing. When there is evidence (in this case cell phone footage taken by Mr. Harrold Jr.’s father and security footage from the lobby cameras) that an attack is both unfair and clearly motivated by race, there are consequences. That means that our society is moving in the right direction. Increasingly, racism can’t exist with impunity. We have laws and processes in place to protect the victims of bias, and when they’re put to work, they produce a better form of justice.

However, this incident also illustrates just how critical it is to have ironclad evidence. Without cell phone and security footage, the District Attorney for New York would never have brought charges, and it would have been next to impossible for the Harrolds to pursue a successful lawsuit against Ms. Ponsetto or the hotel. If you’ve been wrongly accused of criminality based on your race, that evidence may exist even if you don’t have cell phone footage, but it is essential to discuss your case with experienced attorneys who can help you find the evidence you need, and who are willing to fight on your behalf.