The on line article points out that while the statewide awareness campaign focuses primarily on hand-held calls and text messaging,  other distractions while driving include eating, drinking, changing stations on the radio, brushing one’s hair, etc.  The site even posted entertaining videos produced by the California Office of Traffic Safety showing “zombie drivers” being distracted.    Coachella Festival goers enjoy, but beware and be safe.

Data from the National Highway Traffic Safety Administration (NHTSA) shows the proportion of fatalities reportedly associated with driver distraction increased from 10 percent in 2005 to 16 percent in 2009.  20 percent of injury crashes nationally in 2009 involved reports of distracted driving.  The NHTSA points out that  cell phone and texting aren’t the only causes of distracted driving accidents.  Activities such as reaching for something inside the vehicle, changing a radio station, talking to a passenger, eating or even drinking is considered distracted driving and can be dangerous.

In 2009, 5,474 people were killed and an estimated 448,000 were injured due to distracted driving. Of those distraction-related crashes, cell phone use could be directly attributed to 995 fatalities and could be blamed for 24,000 injuries.

Studies  show that Drivers using hand-held devices are four times as likely to get seriously injured in crashes.  This rate increases with younger less experienced drivers. Studies have shown that texting while driving can delay a driver’s reaction time just as seriously as a legally drunk driver. Also, “hands-free” cell phones do not eliminate cognitive distraction and that cognitively distracted drivers can miss up to 50 percent of their driving environment.

The California Highway Patrol said during last year’s April 2011 campaign there were over 52,000 citations issued statewide. There were 13,321 citations issued in Orange County for drivers using non-hands free cell phones and drivers under the age of 18 using any type of cell phone. There were 730 citations issued for texting while driving by the California Highway Patrol in April 2011.

Read more on Brain Injuries From Accidents and Falls.

There are a variety of causes that can result in a brain injury. Natural caused illnesses,  adverse effects of medication or medical treatment, and head trauma injuries. Widespread brain damage can be attributed to prolonged lack of oxygen being delivered to the brain, certain poisons that damage brain cells, and more. Localized brain damage is typically a result of physical trauma but also can be attributed to strokes, aneurysms, surgeries, and neurological disorders.

Traumatic brain injury (TBI) is classified as any external force which produces a sudden physical injury as result of violence or accident. There are a variety of subclassifications that further identify the type of TBI (mild, moderate, and severe).

The Center for Disease Control and Prevention (CDC) estimates that approximately 1.7 million people sustain a traumatic brain injury annually (http://www.cdc.gov/traumaticbraininjury/).  Below are the leading causes of traumatic brain injury in the United States.

The Centers for Disease Control and Prevention Brain Injury Causes

• Slip and Falls (35.2%)
• Motor Vehicle Accidents (17.3%)
• Struck by/against Events (16.5%)
• Assaults (10%)
• Other (21%)

Brain injury effects are still not completely understood, though medical advances have helped minimize brain damage and mortality rates. Brain injuries span a variety of effects from changing the way a person thinks, how they act, and how they feel. Since the brain does not heal the same way as other organs, the effects of a brain injury are often permanent and require frequent support. The CDC categorizes the four areas TBI affects:

• Thinking
• Sensation
• Language
• Emotion

While the consequences of severe brain trauma is generally known, mild brain trauma, such as concussions, may also affect physical and emotional brain processes. If left undiagnosed and untreated, a mild brain injury can result in depression, mood swings, and even suicidal ideation. Children that are victim to TBI often have trouble communicating the symptoms that are occurring (especially relating to cognitive function and thought processes). In the event that your child has a head injury, be wary of persistent crying, inability to be consoled, refusal to eat, irritability, confusion, or other actions that seem uncharacteristic.

Be proactive about head injuries. If you were involved in an automotive accident, slip and fall, or other accidents, seek appropriate medical attention from a professional.

For legal representation in automotive accidents, slip and falls, or other personal injuries, contact the Law Offices of Frederick S Schwartz for more information.

In the event of a serious accident, things like medical bills, lost income, damages, and more could be your own responsibility.

In the event of a “hit and run” accident, uninsured/underinsured coverage will help recoup losses even though the driver was unknown.

The cost of adding coverage for uninsured or underinsured motorists is reasonable, and in the event of an accident with someone who is underinsured or completely uninsured, it will protect you from major medical bills down the road. For more information, contact the Law Offices of Frederic S. Schwartz at (800)994-4442.

Don’t be afraid to negotiate with your adjuster. If you feel you are being underquoted (if you’re unsure, it’s best to seek an attorney), you may counter offer with a higher settlement in a demand letter. In order to approach the negotiations most effectively, it’s best to follow a general plan of action.

Beginning Negotiations

Once you receive your initial settlement offer from the adjuster, you may decline and counter the offer with a professionally worded ‘demand letter’. Like most bargaining scenarios, you’ll likely receive a counter offer from the adjuster that more closely meets your expectations. This process can go back and forth several times before reaching an agreement. If you feel as though you’re not getting anywhere you may want to consider some tips below.

Pre-Negotiation Tips

For any bargaining exchange, knowledge is essential. Knowing what you’re responsible for, what you’ve agreed to, and all your options will help keep you from being underquoted.

• Determine Your Costs – What is it going to take to be reimbursed for your costs? Keep track of all your expenses as a results of the accident.
• Get Legal Representation – If you feel as though you’re being taken advantage of, consistently under quoted, or the process is being drawn out, then an attorney may be necessary.
• Read Your Policy – It is important to know what agreement you’ve made with your insurance company. Knowing your deductibles, coverage amounts, and other details in your declaration page will help in determining a fair settlement amount.

Mid-Negotiation Tips

During the negotiation, there are a number of things you can do to speed the process along or boost your final settlement amount.

• Legal Representation – Attorneys are well versed in insurance negotiations. Knowing when to accept or when to withdraw from a negotiation will be critical during the exchange. Additionally, in the event that the insurance company is significantly underquoting your claim, an attorney can help you file a lawsuit against the agency.
• Speak to Supervisors – Your claim adjuster has bosses that he or she must get approval from before adjusting your claim. You may be more convincing that the second-hand account of the accident and its details.
• Being Proactive – Don’t continually wait for adjusters to contact you. Gather any information required quickly, and stay in contact with your adjuster. Not only will this show that you’re organized and knowledgable, but your persistence may help pull the claim in your favor.

Once those in the accident are safe and any other dangers around the scene are extinguished, start collecting as much evidence as possible. While evidence collection is typically the last thing on your mind in the event of an accident, but in the event you need to take your case to court, having sufficient evidence will help you receive the appropriate compensation.

Taking clear and concise photos of the accident scene is one of the most important ways of collecting evidence. In order to accurately depict the scene of the accident, be sure to take pictures from a variety of angles and perspectives. There are a number of things to take photographs of that you may not initially take note of, but could be imperative in your legal case:

• Road Conditions
• Car and Property Damage
• Tire markings
• Road Debris
• Injuries
• And other evidence that seems relevant

Occasionally, you may be unable to be enter the accident scene. In the event you are unable to gather your own evidence with vehicles still present, there are a number of other ways to gather information.

• Traffic Cameras – Determine if any cameras may have gathered evidence on the accident
• Tire Marks – Locked brake skid marks, yaw friction marks, and other scuffs.
• Intersection Details – Intersection drawings, signal timing charts, maintenance logs, etc.
• Emergency Response Records – Emergency personnel maintain event records that may have relevant information.
• Towing Records – Often include general description and comments about the accident and involved parties.
• Police Records – An official police report and police photographs should always be obtained.

After an accident, it is very useful to write down the events that you experienced in order to assess all the details that you can remember. Track any expenses, medical visits, and other consequences of the accident/an injury. Having this information readily available will make compensation easier down the road.

With enough evidence, accidents can be reconstructed and any events can be analyzed and quantified. The dynamics of the event based on physical evidence and medical professionals can provide insight into what forces are required to cause the trauma they treated.

A car accident lawyer can help get you any resources you need, obtain additional photographs and evidence, and offer legal advice. Be sure to consult your attorney before seeking out car repairs or other actions that may impact potential evidence.

For legal representation, contact The Law Offices of Fred Schwartz.

Public Justice was counsel in Discover Bank, and has won many victories over the years where courts have struck down contract terms banning class actions that were unfair, including major precedents in the U.S. Courts of Appeal for the Third and Ninth Circuits and six state supreme courts.  In the wake of Concepcion, many courts have been and will be asked to reexamine their prior decisions invalidating class action bans, and many companies are arguing that Concepcionrequires the enforcement of any contract term banning class actions no matter what the evidence in the case would show or what state law is at issue.  As a result, it is certain that some consumers and employees will be unable to pursue class-wide relief even though their claims are legally valid.  But we do not believe that Concepcion wipes away all of the protections that consumers and employees have against unfair contract terms that would ban class actions.  On the contrary, there are several ways in which courts can and should limit Concepcion’s holding.  Here are the most promising limitations.*

We are grateful to the attorneys and firms who have permitted us to post their work on this site.

1. Concepcion does not require enforcement of a class action ban where the evidence shows that the plaintiffs could not effectively vindicate their statutory rights in individual arbitration. The U.S. Supreme Court has consistently held that statutory claims can be arbitrated, but only so long as the arbitration clause permits the parties to effectively vindicate their statutory rights. Concepcion did not overrule that precedent.  Indeed, the Court noted that the plaintiffs’ claims inConcepcion were “most unlikely to go unresolved,” and there was no factual record showing otherwise.  The problem, according to the Court, was that California’s Discover Bank rule was so “toothless and malleable” that it would nonetheless invalidate AT&T Mobility’s class action ban—even though the plaintiffs could vindicate their rights in individual arbitration.  That reasoning does not apply where the plaintiffs have developed an evidentiary record establishing that a class action ban would, as a factual matter, prevent consumers from having a meaningful chance to pursue their particular legal claims.  See, e.g., Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2006).

• Click here for a Public Justice brief making this argument.
• Click here for a brief filed by Chavez & Gertler making this argument in an appeal in California.
• Click here for an example of the type of expert witness testimony that is essential to building a thorough evidentiary record.
• Click here for a short federal district court order providing that parties should build a factual record before it can evaluate the enforceability of a class action ban (something that would not be necessary if the court had agreed with the defendant’s argument that Concepcionmakes all class action bans enforceable without respect to the facts of a case)

2.  Concepcion does not require enforcement of a class action ban that would conflict with federal law.  Because Concepcion involved the preemption of state law, it does not affect cases involving purely federal law.  Two federal courts of appeal have struck down class action bans in cases where the evidence showed that the class action bans would undermine the enforcement of the federal antitrust laws, for example, and there is a strong argument those decisions are not undermined by Concepcion.  See In re American Express Merchants Litig., 634, F.3d 187 (2d Cir. 2011) (an agreement which in practice acts as a waiver of future liability under the federal antitrust statues is void as a matter of public policy); Kristian v. Comcast, 446 F.3d 25 (1st Cir. 2006) (the term “essentially shielded [the defendant] from private consumer antitrust enforcement liability, even in cases where it has violated the law.”)

• Click here for a brief filed in In re American Express Merchants Litigation by Friedman Law Group LLP arguing that Concepcion should not be taken to disturb the Second Circuit’s opinion in that case.

In addition, some federal statutes expressly prohibit arbitration of claims arising under the statute. See, e.g., 15 USCA § 1639c(e)(1) (barring arbitration clauses in residential mortgage loans); 18 U.S.C. § 1514A(e) (pre-dispute contracts requiring arbitration of whistleblower claims under the Sarbanes-Oxley Act not enforceable); 10 U.S.C. §§ 987(e)(3), 987(f)(4) (voiding arbitration clauses in payday loan contracts with members of the military or their families); 15 U.S.C. § 1226 (automobile manufacturers prohibited from imposing pre-dispute arbitration clauses in their franchise agreements with dealers). Other statutes may arguably provide an unwaivable right to bring a class action.  See, e.g., 29 U.S.C. § 216(b) (Fair Labor Standards Act provides that “[a]n action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and [on] behalf of himself and other employees similarly situated”); 29 U.S.C. § 157 (National Labor Relations Act provides employees the right “to engage in . . . concerted activities for the purposes of . . . mutual aid and protection”).  If courts agree that these statutes do not permit corporations to impose class action bans in certain circumstances, nothing in Concepcion would change that conclusion.

3. Concepcion should not apply where the arbitration clause expressly adopts state law.  Even where the FAA would otherwise preempt state law invalidating a class action ban in an arbitration clause under Concepcion, preemption should not apply where the language of the arbitration clause shows that its drafter has voluntarily agreed to be bound by state law.  For example, the contract may provide that, if the class action ban is unenforceable under state law, the entire arbitration clause cannot be enforced.  By its own terms, such a contract term – drafted by the company itself – directly accepts that if a class action ban violates state law, it will not be enforceable.  Such a promise in a contract is not preempted by federal law.  See American Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995) (federal law does not preempt a party’s voluntarily assumed contractual obligations because such promises are “self-imposed undertakings”).

4. Concepcion does not change the law prohibiting a corporation from imposing a class action  ban on consumers or employees after litigation has commenced.   In an effort to take advantage of Concepcion, some companies may attempt to add an arbitration clause and class action ban to their consumer or employment contracts while a class action is already pending.  This is an improper communication with the class, and any contract term imposed in this way should be unenforceable.  See, e.g., In re Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237 (S.D.N.Y. 2005) (refusing to enforce class action bans mailed by creditor to members of putative class); Long v. Fidelity Water Sys., Inc., 2000 WL 989914, at *3 (N.D. Cal. 2000) (declining to enforce arbitration clause added to credit card contracts nearly one year after class action was filed, because defendants “gave no notice to [the plaintiff] that if he opted for the arbitration provision, he could not participate in the pending class action”); Carnegie v. H&R Block, Inc., 687 N.Y.S.2d 528, 532 (N.Y. Sup. Ct. 1999) (refusing to enforce arbitration clause added to defendant’s loan agreement that prohibited class-wide relief as to existing claims, because those who signed the agreement “were completely unaware of this litigation and that by signing the [loan agreement] form, they were waiving their right to participate in this class action”); Bilbrey v. Cingular Wireless, LLC, 164 P.3d 131, 134 (Okla. 2007) (arbitration clause unconscionable where it was imposed on class members after class action complaint had been filed);  H&R Block, Inc. v. Haese, 82 S.W.3d 331, 333, 336 (Tex. App. 2002) (class action ban incorporated into lender’s standard agreement after class action was filed “constituted an unauthorized, impermissible, knowing and intentional communication with members of the plaintiff class” that “was calculated to reduce class participation and to obstruct the trial court in the discharge of its duty to protect the absent class”).

5. Concepcion does not require enforcement of arbitration clauses specifying only the National Arbitration Forum. A large number of arbitration clauses specifically name the National Arbitration Forum (“NAF”) as the sole arbitrator.   But the NAF was forced to abandon consumer arbitrations by a law enforcement action.  While corporations routinely ask courts to re-write the arbitration clauses to select another arbitration company,  several courts have thrown out NAF-only arbitration clauses on grounds that the language of a contract demonstrated that the defendant’s selection of NAF was an integral term of the clause.  See, e.g., Ranzy v. Tijerna, 393 Fed. Appx. 174 (5th Cir. Aug. 25, 2010); Carideo v. Dell, Inc., 2009 WL 3485933 (W.D. Wash. Oct. 26, 2009) (same); Carr v. Gateway, 944 N.E.2d 327 (Ill. 2011) (same); Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa. Super. Ct. 2010) (same).

• Click here for a Public Justice brief making this argument.

6. Concepcion does not apply to claims against certain creditors.  Four major credit card companies are currently constrained from requiring arbitration, notwithstanding Concepcion, by the terms of a settlement approved last year.  On July 26, 2010, a federal court in New York approved a settlement in Ross, et al. v. Bank of America, N.A, No. 05-cv-7116, MDL No. 1409 (S.D.N.Y.), which precludes the settling defendants from enforcing their arbitration clauses and class action bans against cardholders.  Pursuant to the settlement, Bank of America, Capital One, Chase, and HSBC have agreed (1) to remove any arbitration clauses and class action bans from U.S. cardholder contracts; (2) not to restore or otherwise insert any arbitration clause or class action ban into its U.S. cardholder contracts within three and one half (3.5) years following May 1, 2010; and (3) not to seek to enforce their current or former arbitration clauses or class action bans against any members of the settlement class.  Information about the settlement is available athttp://arbitration.ccfsettlement.com/.

7. Concepcion may not apply to cases in state court.  The Concepcion case originated in federal court.  Justice Thomas—who provided the crucial fifth vote for the Concepcion majority—has consistently maintained that the FAA does not apply to cases in state court.  Had the issue inConcepcion reached the U.S. Supreme Court from a state court, there presumably would not have been five votes for preemption.  At least one federal court has already recognized this implicit limit toConcepcion’s preemption holding.  Arellano v. T-Mobile USA, Inc., 2011 WL 1842712 (N.D. Cal. May 16, 2011) (repeatedly noting that Concepcion’s preemption holding is the rule “at least for actions in federal court”).  Thus, there is a strong argument that Concepcion’s preemption holding does not apply to cases in state court.

• Click here for a Public Justice brief making this argument.

8. Concepcion will not interfere with state laws that limit class action bans or arbitration clauses in insurance cases.  A large number of federal and state appellate courts have held that the FAA does not apply to state laws that ban or limit the use of arbitration clauses by insurance companies.  About 20 states have barred insurance companies from using mandatory arbitration clauses, and nothing in Concepcion will interfere with those state laws.

• Click here for Public Justice Senior Attorney Paul Bland’s testimony before the Nevada State Senate setting out some of this case law.

9. Concepcion does not entitle a defendant to compel arbitration if it has already waived its right to arbitrate.  It is black-letter law that even where a valid arbitration agreement exists, a party may waive its right to avail itself of the right to arbitrate.  See, e.g., Lewallen v. Green Tree Serv., L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007).  Courts look at a variety of factors, for example:  how many months or years the parties have engaged in litigation prior to the party moving to compel arbitration; whether significant motion practice and/or discovery has taken place; whether the party sought a judicial ruling on the merits; and whether the party invoked its arbitration clause only after receiving an unwelcome ruling from a court.  Only where a party can demonstrate that there was a change in the governing law that was so significant that it would have been futile to seek arbitration any earlier will a court find that a change in the law excuses waiver of the right to arbitrate.

• Click here for Public Justice’s brief on waiver in Lewallen.

10.  Concepcion should not apply to cases where state law does not require nonconsensual class arbitration.  Justice Scalia’s majority opinion in Concepcion devotes several paragraphs to explaining why “class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA.”  131 S. Ct. at 1750–52.  The Court was clearly concerned that courts applying the Discover Bank rule could order parties to arbitrate on a class-wide basis against their will.  It stands to reason, then, that where state law does not present that conflict, it should not be preempted by the FAA under Concepcion.  A state supreme court could clarify, for example, that under its state law, if a class action ban is invalidated (for instance, because it would prevent the plaintiffs from effectively vindicating their statutory rights), the drafter of the contract is given a choice between arbitration and litigation in court.  In that instance, a court could decline to enforce the class action ban without running afoul of Concepcion.

• Click here for a Public Justice brief making this argument.

11. Concepcion does not impact cases in which no contract—or no arbitration clause—is involved. It might sound obvious, but Concepcion will not affect class actions where the parties are not bound by a contractual agreement.  For example, when a defective product is sold over-the-counter at a pharmacy, there generally is just a receipt but no arbitration clause or written contract. Class actions can certainly proceed in that kind of circumstance, notwithstanding Concepcion.

12.  Concepcion does not limit the impact of federal legislation and/or regulations barring companies from imposing arbitration clauses.  The Arbitration Fairness Act of 2011, sponsored by Senator Al Franken, would ban all predispute mandatory arbitration clauses in consumer and employment contracts.  In addition, the new Bureau of Consumer Financial Protection, created in 2010 by the Dodd-Frank Wall Street Reform and Consumer Protection Act, has the authority to ban or regulate arbitration clauses in consumer financial products and services contracts.  The Bureau will soon be conducting a study to determine whether prohibiting or limiting arbitration clauses would be in the public interest and protect of consumers.

• Click here for Paul Bland’s testimony on the Arbitration Fairness Act.

*In addition to the arguments set out here, there are many strong arguments for why courts should refuse to enforce arbitration clauses in a variety of circumstances unrelated to Concepcion.  These arguments and the cases supporting them are collected and analyzed in our treatise, Consumer Arbitration Agreements: Enforceability and Other Issues, which the Public Justice Foundation publishes annually with the National Consumer Law Center.  To purchase the treatise, click here.

Re-printed with the permission of Public Justice

Indeed, where the land owner is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude that a failure to warn or repair the condition constitutes negligence. Rowland v. Christian (1968) 69 Cal 2d 108, Fitch v. Le Beau (1969) 1 Cal App 3d 320.

Once a landowner knows or should know about an unreasonably dangerous condition on his property he has an affirmative duty to either repair or warn individuals who have a right to be on the premises of the dangerous condition. Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d. 479, 227 Cal.Rptr. 465. See also Peterson v. Superior Court (1995) 10 Cal.4^th 1185, 1198 (landlord must exercise reasonable care with respect to those on the property).

In determining, whether the Defendants breached a duty of care to Appellant, the trier of fact must balance the magnitude of the harm likely to result from the defendant’s conduct against the social value of the interest that defendant is seeking to advance and the ease with which the defendant could have taken precautions to avoid the risk of harm. Musgrove v. Ambrose Property (1978) 87 Cal.App.3d 44, 53, 150 Cal.Rptr. 722, 726.

The Supreme Court’s holding in Rowland v. Christian (1968) 69 Cal 2d 108, 112,113 specified  the general criteria for determining, in effect, whether to impose a duty of care on the landlord.  These include such factors as the foreseeability of harm; the certainty of injury; the proximity of the conduct and the injury; the moral blame ascribed to the conduct; the policy of preventing future harm; the extent of the burden and consequence to the community of imposing the duty; and the availability, cost and prevalence of insurance.

CACI 1001 defines the basic duty of case that governs the liability issues in this case.  It provides as follows:

“A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.  A person who owns/leases/occupies/controls] property must use reasonable care to discover any unsafe condition and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. “

CACI 1103 then defines what constitutes an unsafe condition, and it provides as follows:

“[Name of Defendant] was negligent in the use or maintenance of the property if:

1. A condition on the property created an unreasonable risk of harm.
2. [Name of Defendant] knew or, through the exercise of reasonable care, should have know about it; and
3. [Name of Defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.”