Archives for Auto Defense

The Little Black Box: Who Owns Your Car’s Secrets?

November 19, 2012

By: Thomas G. Wianecki and Roxana Amini

Two years ago, Paul Van Alfen crashed his 2008 Toyota Camry into a stone wall after exiting the highway. The collision claimed the lives of the Mr. Van Alfen and his son’s fiancé. According to the police report, the weather was dry and sunny and the roadway was unobstructed. Mr. Van Alfen’s wife and son, who were also in the Toyota but survived the crash, told police that Mr. Van Alfen tried to brake but couldn’t. After the Van Alfen death, the family filed a wrongful death lawsuit against Toyota.

In response to the Van Alfen lawsuit, Toyota sought information from the Camry’s event data recorder (“EDR”), which is analogous to an airplane’s “black box.” An EDR is installed by the vehicle manufacturer and is made up of tiny microchips that store information collected by the vehicle’s electronic sensors. It records data just prior to a vehicle crash and may include vehicle speed, engine speed, percentage of throttle and braking information.[i]

Toyota inspected Mr. Van Alfen’s black box and reported that Mr. Van Alfen never pushed the brakes before the accident. Toyota probably expected this to end the lawsuit, but U.S. District judge sanctioned the auto manufacturer because it obtained the information without a court order or providing notice to the Van Alfens’ lawyer. The judge noted that Toyota’s actions “cast a cloud of suspicion” over the inspection.

Under California law, a third party like Toyota cannot obtain the information in a vehicle’s black box without consent by the registered owner or a court order. If there is consent or a court order, the information can be released to a third party, such as the vehicle’s manufacturer, the driver’s insurance company, or an investigating public agency.[ii] A public agency may also obtain the information if there is a warrant.[iii]

Mostly likely, there is a black box in your car and it has been disclosed in the owner’s manual.[iv] Be aware that in the event of an accident, your car’s secrets will not necessarily be protected from disclosure.

[i] People v. Ferguson (2011) 194 Cal.App.4th 1070, 1087 (a motorist has a subjective and reasonable expectation of Fourth Amendment privacy rights with regard their vehicle’s digital data).
[ii] Cal.Vehicle Code § 9951
[iii] People v. Xinos (2011) 192 Cal.App.4th 637, 659.
[iv] Cal.Vehicle Code § 9951 (applies only to vehicles “manufactured on or after July 1, 2004”)

Gov’t Liability for Dangerous Condition

August 31, 2011

By: Paul J. Lipman

On 8/31/11, the appellate court in Salas v. Caltrans (2011 DJDAR 13320) affirmed summary judgment for the state as against the family of the deceased pedestrian, who was struck and killed by a motorist as she was crossing from north to south in a crosswalk at a flat, unobstructed intersection at 7:00 a.m. in October. Pedestrian Paula Salas departed slightly from the crosswalk on it’s east side to stoop and examine a bag. Her companion saw the oncoming motorist with it’s headlights on coming from the west. He kept walking and was not hit but Paula was struck. Plaintiffs alleged that a contributing factor was a dangerous condition of public property including “lack of proper signage, controls or signals … placing crosswalk in the location without proper safety devices; failing to follow recommended standards as to the location of the crosswalk; failing to provide the recommended croswalk design for the location; and failing to properly enforce and/or control speed in the area”. Their expert was Robert Douglas. He declared that the area was dangerous, that 23 traffic collision reports from the area and Caltrans’ “Table C” report identifying the area as a “high-collision concentration” area pointed to its dangerous character, that his own study showed that the 85th percentile speed at 1000 feet from the intersection was 69 mph so that entering vehicles did not have the 7 1/2 seconds “corner sight distance” intersection entering time recommended by Caltrans, and that the crosswalk was difficult to see because there no bold diagonal lines; and that there was improper, inadequate signage. Specifically, Caltrans had decided to remove, but had not yet removed, a sign showing a pedestrian stick figure crossing, to be replaced it with a “down arrow” pointing to the crosswalk. In response, Caltrans objected to the accident reports as not similar, declared that the phase-out of the old sign had a grace period, and generally denied that the plaintiff’s showing amounted to a showing of a “dangerous condition”. The court agreed with Caltrans and granted MSJ. This ruling was affirmed. Gov. Code §835 requires plaintiffs to prove a “dangerous condition” which proximately causes an injury. “Dangerous” is defined as a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be sued” (Govt. Code §830(a)). Sometimes, the dangerous condition can arise from an “amalgam” of factors, and if third party conduct is contributed to by a dangerous condition it may be actionable. “But it is insufficient to show only harmful third party conduct, like the conduct of a motorist … There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff”.

Here, Caltrans established that the intersection was flat and had no obstructed sight lines. There were signs: At 600 feet there was a sign announcing the upcoming street, at 445 feet another sign announced the crosswalk coming up, and the crosswalk marking itself existed at the scene. Further, the other accidents did not involve a pedestrian over a 10-year period, during which 30 million vehicles had passed through. This was enough to shift the burden to plaintiff on MSJ. Plaintiff’s evidence was insufficient, as the other accidents were dissimilar. The plaintiffs furthermore did not explain how the objections to the plaintiff’s expert’s declaration were wrong. “Simply claiming that Douglas is well qualified and that many factors must be considered in determining a dangerous condition fail to carry the burden to show error”. The trial court’s decision in throwing out the Douglas declaration was only challenged by generalities.

Thus, it is possible to prevail on MSJ in dangerous condition cases where the plaintiffs cannot muster substantial evidence of similar accidents or other indicia of dangerous condition. Courts are often loathe to conjure a dangerous condition out of a laundry list under an “amalgam” rationale where no actual evidence of dangerousness exists.

Rescue Doctrine

By: Paul Lipman

When a driver, landowner, or other defendant negligently puts someone in danger and someone has to rescue them, the “rescue doctrine” provides that if the rescuer gets injured, he or she can sue the defendant, too. Assumption of risk is not a defense; you are allowed to rescue someone even though you know it’s dangerous and if someone else created the original danger, they will generally have to pay for any injuries caused either to the other person or to you. However, a recent case points out that the rescuer cannot sue, if it turns out that there was actually no duty owed by the defendant to the victim being rescued, in the first place. In Tucker v. CBS 2011 DJDAR, CBS organized a $50 per person off-road ride and raffle. Along with the paying participants (who got to take part in the end-of-ride raffle and get a free t-shirt along with a free concert), there were non-paying participants who could join in the ride but didn’t get to be in the raffle or get a t-shirt. All participants, paying and non-paying, were told to use a certain tunnel that ran under railroad tracks. This tunnel was near the end of the ride and got very congested with returning participants eager to get to the raffle and free concert. Participant Aaron Tucker decided to go over the tracks instead of through the congested tunnel. At some point after crossing over, he heard someone yell “train” and he looked back and saw a non-paying participant, Kendle, stuck on the tracks. He went back and tried to help Kendle dislodge his vehicle. Soon the train was upon them and they had to jump out of the way; Tucker grabbed Kendle and pulled him, thereby rescuing him from the train. The train did not hit either of them directly but it struck Kendle’s vehicle, which then stuck Tucker. Tucker sued the ride’s organizer, CBS. The court dismissed Tucker’s case on demurrer and this was affirmed on appeal. First, Kendle (the rescuee) was a foreseeable participant, but a non-paying one, who was not eligible to enter the end-of-ride raffle or get free t-shirts at the end of the ride. It was thus less foreseeable that a non-paying participant like Kendle would use a hurry-up method like using the tracks instead of the tunnel. As the court noted, “Foreseeability supports a duty only to the extent it is reasonable, because rarely is anything unforeseeable … On a clear day, you can foresee forever”. Further, while conceivable there could have been better warnings or traffic monitoring, “it was not CBS’s .. moral responsibility to undertake all possible measures to protect Kendle … from injuries that were not reasonably foreseeable”. Finally, it would be an unfair burden on defendants in general to make people liable to non-paying participants in such circumstances, especially since they did not own the land but merely organized a ride over it.