PRIME RUS CONVOCATION APRIL 2018 - Litigating in the 21 st Century: Advancements in Technology –The evolution of the vehicles we operate and advancements in how accident scenes are investigated Presented by: David Fink, Esq and Andrew Isakoff, Esq.
Advancements in Technology – The evolution of the vehicles we operate and advancements in how accident scenes are investigated Presentation Topics • Vehicle Advancements • Equipment Advancements (Telematics & Dash Cams) • Accident Reconstruction Advancements • Questions
Vehicle Advancements The National Highway Traffic Safety Administration (NHTSA) The NHTSA was established by the Highway Safety Act of 1970 as an agency within the U.S. Department of Transportation to carry out highway safety programs. Mission: Save lives, prevent injuries, and reduce economic costs due to road traffic crashes through education, research, safety standards, and enforcement activity. The 2016-2020 NHTSA Strategic Plan outlines the innovative partnerships and strategies that NHTSA will use in addition to its core programs to achieve its mission, and further the nation down the road to eliminating traffic fatalities.
Vehicle Advancements The National Highway Traffic Safety Administration (NHTSA) Within the Strategic Plan the NHTSA focused on two key numbers: • In 2015, an estimated 35,092 people lost their lives on US roadways (7.2-percent increase over 2014). • 94 percent of crashes are due to human choice or error. Five Strategic Goals: 1. Safety 2. Proactive Vehicle Safety 3. Highly Automated Vehicles 4. Human Choices 5. Organizational Excellence
Vehicle Advancements NHTSA - The Evolution of Automated Safety Technologies
Overview of Vehicle Advancements Focus on Vehicle Safety and Construction
Vehicle Advancements V2V Communication
Vehicle Advancements NHTSA – The Road to Full Automation
Vehicle Advancements NHTSA – The Six Levels of Automation
Equipment Advancements The Benefits of Dash Cams & Telematics • Telematics technology has been available for more than two decades. • Video technology has been available for more than a decade. If a picture is worth a thousand words, what is a video worth?
The Benefits of Dash Cams & Telematics
The Benefits of Dash Cams & Telematics • Video recordings document the accident more accurately. Therefore… • In many instances, they are the best and most exculpatory evidence. • They can help to reduce, and even deter frivolous/fraudulent claims. • In instances of liability, they improve the accuracy and efficiency of the claim evaluation process. • Video footage can be an effective tool for training drivers, i.e., driving habits, evasive maneuvers, and appropriate response/reaction to an event. • When synced with telematics, video recordings will improve, and and may even eliminate, the need for a full accident reconstruction.
The Benefits of Dash Cams & Telematics The Bottom Line In most cases, the use of Dash Cams, Telematics and other event recorders can lead to a reduction in: • The cost and expense associated with claims handling; • The cost and expense associated with litigation; • A reduction in overall claims; and • A reduction in insurance premiums.
Potential Drawbacks • Video recordings document the accident more accurately. Therefore… • Video footage may document liability. • Video footage may enhance exposure by: • Documenting inattentiveness - fatigue, inattentiveness or distraction; • Potentially inflaming a jury, i.e., graphic images; • Documenting a failure to follow company policy; or • Documenting a maintenance issue.
Potential Drawbacks IF IT IS WORTH DOING, IT IS WORTH DOING RIGHT! • Requires the implementation of additional polices and procedures. • Requires more regulatory and compliance advice and more compliance by the company: • What is the industry standard – are the company’s policies and procedures in line with this standard? • Is the company consistently operating in compliance with its own policies/procedures? • Is the company consistently reviewing the footage of events for disciplinary review/determinations? • Is the company regularly monitoring performance of all drivers?
Retention Policies • Establish set protocols: • What should be retained in ordinary course of business and for how long? • What should be retained when there is an event? • Where and how is the data stored? • Preservation/Litigation Hold Letters • What is a reasonable opportunity to inspect, analyze or test? • What is reasonable notice of intent to repair, replace or destroy?
Spoliation • Use of dash cams, telematics, and other forensic technology- a shield and a sword • Creates additional electronic data/records to be preserved When does a claim for spoliation arise? • The test: • Obligation, duty to preserve • Evidence destroyed or altered with a culpable state of mind • Evidence was relevant and would have supported a claim or defense • Typical sanctions • Testimony barred • Cross examination of company representative • Adverse Inference jury instruction • Dismissal • Attorney Fees awarded • Independent tort (depending on jurisdiction)
Accident Reconstruction Immediate Evidence Collection
Accident Reconstruction Immediate Evidence Collection • Physical evidence at the scene deteriorates quickly • Vehicles are, repaired, sold or salvaged • Knowing your position in hours or days - not years later
Accident Reconstruction Scene Evidence • Tire Marks • Fluid Spills • Drag Marks • Final Rest Positions • Environmental Conditions • Witness Statements
Accident Reconstruction Vehicle Inspections • Damage • EDR’s • Seatbelt Usage • Occupant Contacts • 3- D Scan for Preservation
Immediate Evidence Collection Know Your Clients Position • Was your driver speeding? • Did your driver react appropriately? • Was it avoidable? • Were the actions of the other parties appropriate?
Accident Reconstruction Old School Techniques • Photographs • Witness Statements • Police Reports • Measurements • Drawings • Testimony
Accident Reconstruction Old School Techniques
Accident Reconstruction New Techniques • 3D Scans • Vehicles and Scene • Drones • Downloads • Not just EDRs anymore • Animations • Synergy with Biomechanical Experts • 3D Film Images
Accident Reconstruction INSERT VIDEO
Accident Reconstruction INSERT VIDEO
Accident Reconstruction
Accident Reconstruction
Synergy with Biomechanical Experts
QUESTIONS?
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