TEXTING AND DRIVING Make the right call on texting and driving
After years of false stops and starts, a bill to curb texting while driving is finally building momentum in the Florida House. The current bill would impose a $30 fine for anyone texting while driving, and a $60 fine for doing so again within the same five-year period. Texting would still be allowed when stopped or at a red light.
Texting and driving has been and continues to be one of the leading causes of fatal car accidents in the State of Florida. Easily explaining the reasons for the situation is the ever standstill of the Florida legislator on this issue. For several years Ira Leesfield and the personal injury lawyers at Leesfield & Partners have argued in favor of, and pushed legislators to pass a ban on texting while driving. Last week, despite a House and Senate either ignoring the reality of distracted driving, or incapable of coming to a sensible piece of legislation, a Broward County Judge allowed punitive damages in a civil negligence lawsuit for the first time in the State of Florida.
We have reported multiple times in the Florida Injury Lawyer Blawg the calamitous reality in Florida. As explained in our recent post “Florida still refuses to ban texting while driving“, Florida remains one of only six states without any limitations on cell phone use while driving. Every other State has either a total ban or a partial ban on texting and driving.
Over the years, Ira Leesfield has been a spokesperson for greater safety and common sense in the law. His experience fighting for the rights of innocent victims injured by the negligence of others has flourished in the passage of many important laws during his career as a personal injury attorney in Miami, Key West, throughout the State of Florida and the rest of the nation.
Last month, 25-year-old Alicia Westgate killed Richard Webb, an avid 68-year-old bicyclist. New York prosecutors charged Westgate with reckless operation, use of a portable device for texting and failure to use due care. The defendant will answer those charges in Newfane Town Court on August 14.
The state of New York is one of the 38 states that currently have a ban on texting while driving. Last month, we reported on a landmark case in the Massachusetts, where a young man was convicted for 2.5 years in jail for texting while driving and killing a husband and father. Westgate is facing a similar road in her upcoming criminal trial (unless she pleads guilty) if the evidence reveals that she was indeed texting at the time the incident took place.
Studies on the dangers of texting while driving continue to provide more evidence that drivers should not be using their hand-held devices to text. Recently, CNN Anderson Cooper reported on a new study below:
The legal responsibility of a Florida driver involved in an accident causing injuries or death is extremely straightforward as provided by Florida Statute 316.027 – Crash involving death or personal injuries:
(1)(a) The driver of any vehicle involved in a crash resulting in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash . . . . Any person who willfully violates this paragraph is guilty of a felony of the third degree. . . .
(b) The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash . . . . Any person who willfully violates this paragraph is guilty of a felony of the second degree . . . .
In Florida, a hit-and-run causing injury is a felony of the third degree which is punishable by a term of imprisonment not exceeding 5 years, and a hit-and-run resulting in the death of the victim is a felony of the second degree punishable by a term of imprisonment not exceeding 15 years (Florida Statute 775.082).
Gabriel Amaya, a 17-year-old boy, who was riding his bicycle at the crosswalk of Powerline Road and Prospect Road in Oakland Park, was killed last week by a car that slammed into the teenager’s front tire. Gabriel was thrown off his bike and laid motionless on the asphalt. The driver of the car sped off, then stopped and exited his car, before walking right back into his vehicle and fled the scene for good.
Despite the best efforts of the medical team at Broward Health Medical Center, the young boy was pronounced dead later that day.
Broward Sherrif’s Office, investigating the crime, has limited information about the driver or vehicle involved in this incident. They are currently looking for a vehicle with damage to the left, front headlight, grill and side mirror. BSO is encouraging witnesses to come forward and contact the detectives with any information at 954-321-4845.
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Florida law provides that every car insurance company must provide $10,000 in PIP benefits to its insured – Florida Statute 627.736(1). For the past few years, the Florida legislator has made multiple attempts to reform the use of Personal Injury Protection benefits, and prevent further abuse, n order to continue the crackdown on PIP claims fraud which are at an all-time high.
How do PIP benefits work?
When a person is involved in a car accident, and sustains an injury that requires any kind of medical treatment, that person’s car insurance will reimburse (at an established rate) the medical bills incurred to treat them. Through PIP, car insurance companies are required to pay for medical treatment (as well as lost wages if applicable), up to $10,000. Once the PIP benefits are exhausted, the insured becomes responsible to pay for their own medical bills, either through their own private health insurance or out of pocket if they are uninsured.
PIP Fraud claims skyrocketing in Florida
Last April, the Office of Florida’s Chief Financial Officer released staggering numbers indicative of a systemic-induced fraud. In the fiscal year 2010/2011, the Division of Insurance Fraud investigated 13,452 cases of insurance fraud, which ultimately resulted in 997 arrests and 804 convictions. In only one year, Florida Courts have ordered restitution amounting to more than $156 million to defrauded insurance companies.
The Florida Division of Insurance Fraud regularly issues a newsletter “The PIP Source” which summarizes the latest scams and arrests in PIP fraud cases. The latest edition can be downloaded here.
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Aaron Deveau is currently on trial, facing criminal charges including motor vehicle homicide by negligent operation, negligent operation of a motor vehicle, being an operator under 18 using a mobile phone, being an operator reading or sending an electronic message, driving over marked lanes, and two counts of negligent operation and injury from mobile phone use.
This Massachusetts criminal case could be the first landmark case in the controversial topic of texting while driving, after the 17 year-old-teenager, Deveau, collided head-on with a pickup truck on Feb. 20, 2011, and killing 55-year-old Donald Bowley.
Had this accident occurred in Florida, Aaron Deveau would be freely walking down the streets of the Sunshine State with the comforting knowledge that he will never face criminal charges. The victim’s family on the other hand would only have a civil remedy against the negligent teenager.
In 2010 the state of Massachusetts has passed a law banning the use of mobile phones while operating a motor vehicle. A contrario, Florida is one of only six states in the country which continuously refuses to ban the practice of texting and driving. In fact, this year marked the 7th year in a row that the Florida legislature could have voted on a total or partial ban of the use of handheld mobile phones while driving and adjourned without producing a single distracted driving law.
Ira H. Leesfield, as Senior Managing Partner of Leesfield & Partners, has continuously been an advocate in favor of a total ban of the use of mobile phones when driving a motor vehicle. Recently, Ira Leesfield highlighted the main concerns and legal theories under which plaintiffs could attempt bringing civil cases against negligent drivers who caused injuries while using their cell phone: Driving + Cell Phones = Bad Call.
In an article published in the Miami Herald, Texting and driving a costly business risk, Ira Leesfield warned the corporate world of the dangers of having employees driving and using their cell phones. In 2007, an article published in the American Bar Association’s The Brief, Tort Trial & Insurance Practice Section, in which Ira Leesfield analyzes and discusses remedies and tactics for handling motor vehicle collision cases arising from cell phone use and distractions. This article can be downloaded here.
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On March 18, 2012, Alanna Demella was tragically killed at the Riverside Hotel when a car driven by Rosa Maria Rivera crashed into the hotel’s pool cabana built only a few feet away from the roadway.
We previously reported on this terrible accident here: Resort Death of Pregnant Woman Challenges Leesfield & Partners
The Police investigation is still ongoing and, to date, very little information has been released to the public. In the last 72 hours however, we have learned that the Police is looking into Rivera’s potential driving under the influence at the time of the accident. Rivera admitted to the investigators that before the accident, she was with her husband at Mango’s Restaurant, less than two blocks away from where the accident occurred. She also admitted ordering appetizers and a alcoholic beverage. it is still unclear whether Rivera did drink her Martini.
What the investigation has revealed so far is that Rivera was in an angry state when she left the restaurant. Indeed, she told Police Officers that she left the restaurant because she had an argument with her husband. She claimed not having drunk the alcoholic beverage before sitting behind the wheel.
Witnesses to the accident did confirm that the car was going at a high rate of speed and Rivera must have lost control of her car as the only explanation why she drove her car straight into the cabana and why she failed to stay in her lane and make a light turn.
Regardless of whether Rivera was intoxicated at the time, there is no question that she was negligent for causing this accident and for taking the lives of Alanna Demella and her unborn child.
In our prior article (link above), we discussed the possibilities of Riverside Hotel’s negligence in this case. The cabana, as constructed, could have been too close to the roadway and may have been built in violation of rules imposed by the Florida Building Code.
Last week, a witness came forward and advised that there could be another potential defendant who contributed to this crash. From Mango’s restaurant to the scene of the accident, Rivera drove through the intersection of SE 4th Street and SE 8th Avenue. Said intersection did not have any traffic controlling devices such as a 3-way stop sign. In fact, vehicles traveling eastbound or westbound on SE 4th street did not have to stop at all while crossing that intersection.
Only months prior, that intersection was equipped with two additional stop signs (eastbound & westbound) but for some unknown reason, the traffic signs were removed. On the photo (right) you can still see the darker shade of paint covering the “stop lane”. The reasons for the removal of the stop sign is purely speculative at this stage. However, from inspecting the scene, it is very understandable why a stop sign was there in the first place.
Vehicles traveling westbound on SE 4th Street do not have to slow down before the light right-hand turn at the Riverside Hotel. The danger created by the absence of traffic control devices, such as a stop sign, is compounded by the peculiar absence of any signs alerting drivers that the roadway turns to the right. In fact, there are no markings on the pavement, and there are no traffic signs. A thorough investigation would help to show whether such lack of traffic signs and signage on the pavement of the roadway played a role in Rivera’s failure to make the turn and her car crashing into the hotel’s pool cabana.
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On Sunday March 18, 2012, Alanna Demella, 26, from Medford, Massachusetts, was tragically killed while on vacation in Ft. Lauderdale when an out-of-control vehicle traveling on a nearby roadway, slammed through a fence and crashed into the Riverside Hotel’s cabana building where Alanna was changing at the time. She was seven months pregnant and her husband was just feet away when the awful collision destroyed two support pillars and a wall of the cabana, taking the lives of the young woman and her unborn son.
While at first blush this horrific resort-related death seems like a freak accident and the unfortunate luck of being at the wrong place at the wrong time, the causes of the accident certainly are not yet fully established. From a Personal Injury/Wrongful Death lawyers standpoint, the investigation as to the causative factors is much wider than just looking at the fault of the driver and her negligent operation of the vehicle. As is often the case in Florida, people carry minimal automobile insurance or sometimes none at all. Even someone with full coverage does not likely have enough in policy limits to cover the tremendous damages that this case would entail. Therefore for the Personal Injury/Wrongful Death lawyer, it is crucial to act as quickly as possible to preserve the scene and gather evidence than may no longer exist if left in the hands of nature or potential defendants. There may be other responsible parties that could have prevented this foreseeable incident. For example if there were prior crashes in the area or if the building structure was unsafe and building codes, permits and standards were violated. That is why it is of the utmost importance for the grieving family to act promptly in retaining counsel who specializes in these types of cases. Especially where the victim’s relatives are from out of state. This will allow for the family to put the work in the lawyer’s hands while they tend to the grieving process.
Leesfield & Partners is one of the leading resort tort law firms in Florida. Our Resort Tort attorneys have helped countless out-of-state clients who were victims of resort-related incidents similar to the ones the Demella family is now sadly involved in. While Florida in general, and South Florida in particular, is a very popular destination for tourists, incidents do occur with frequency. Consequently, Ira Leesfield helped creating and currently serves as Chairman of the Resort Tort Litigation Group of the American Association for Justice (AAJ).
The first thing that should be done immediately in a case like this is an inspection of the resort property, impact area and vehicle. At Leesfield & Partners, our team of lawyers, investigators and experts are on call seven days a week. We will go to the scene to take photographs and canvas the area for possible witnesses in order to take statements. We will also act quick to contact law enforcement and other investigating agencies to obtain and exchange information. A scene inspection must be conducted with an accident reconstruction expert to establish the speed and direction which the driver was traveling when she collided with the fence, and then the pillars. Properly reconstructing the accident and understanding the facts, can lead to other viable theories of causation.
Another issue that must be investigated locally is whether the Riverside Hotel was in compliance with the Florida Building Code and whether the cabanas, as built, had been inspected and approved by the Division of Professions Building Code Administrators and Inspectors Board. A full report of prior investigations and reports must be obtained to make sure that the construction of the cabanas were in fact legal and compliant with the Florida Building Code. A building code expert must be hired to not only review the findings of those reports, but to establish whether one or multiple violations existed which may have contributed to the destruction of the two pillars that held up the hotel’s cabana building. One other important area that must be looked into is whether the proximity of the cabana building to the roadway played a part in the cause and severity of the crash and whether the cabana building’s location was in compliance with the many building code set back rules and regulations Continue reading
A life-altering collision for at least 2 young women occurred this morning at approximately 2:30 a.m. on Coral Way and SW 84th Avenue in Westchester, Florida, when their vehicle collided an 18-wheeler tractor trailer, driven by Larry Donell Robinson.
Larry Robinson was lucky to walk away from this accident without a scratch, but sadly for the occupants of the white Honda Accord, they all were rushed to Kendall Regional Medical Center.
We have since learned that the driver of the Honda, Alexandria Estrella, 23, and Ana Posada, 18, are in critical conditions and still fighting for their lives. The other three passengers identified by police as Jovanni Oliva, Anthony Emmanuel Del Rio, and Moises Arnold Alvarez were also injured, but not critically.
Estanislad Carlota was sitting on a bus bench last night at a bus stop located on Bird Road and Southwest 93rd Avenue in Miami, Florida. Jose Mendoza, 22 years old, lost control of his silver Dodge Neon and crashed into the bus stop. The vehicle flipped on its side and hit Estanislad Carlota. She was pronounced dead at the scene. Tom Pikul, Florida Highway Patrol spokesman, said the crash occurred at around 8:30 p.m. on Thursday in Westchester.
Florida Highway Patrol is investigating the wrongful death incident and have yet to release much information to the public. After the incident, Mendoza waited at the scene for the police. He told investigators that he somehow lost control of his vehicle without explaining the reason why. FHP is looking at whether speed was a contributing factor to the accident. There is also a possibility that Mendoza became distracted from using his cell phone and veered off the road. Read Ira Leesfield’s article on how Driving and Cell phone use don’t mix.
In Florida, running over or colliding with a pedestrian while operating a car is a violation of the law. Florida Statute §316.130 (15) provides that “. . . Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian . . . and give warning when necessary and exercise proper precaution . . . ” Florida Courts have upheld that when there is evidence of violation of a statute regarding a motorist’s duty to pedestrians, the party is entitled to a jury instruction of such duty. Leesfield & Partners has been representing pedestrians and bicyclists in Miami, Key West, and throughout the State of Florida, who became victims of negligent drivers.
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