COVID-19 And The Law

 

The Coronavirus epidemic of 2020 promises to deliver wide-reaching and dramatic changes to how we live – our society, our culture, our economy.  It will touch every aspect of our lives and as such will also affect the legal system.  Here is a brief set of questions and answers that may be relevant for you.Q: What will happen to my personal injury case in process?

COVID-19-related cases are already flooding the courts and the system is still functioning with limited resources and personnel.  Your case may be put on “the back burner” as a backlog of legal proceedings accumulates due to limited resources. You may experience increased pressure to settle, as the courts struggle to handle the case overload. Additionally, the defendant in the case may now be experiencing financial difficulty, affecting their ability to pay you compensation for your personal injury. Finally, since medical facilities and hospitals are putting off non-critical care, you might experience delays in obtaining medical care for injuries caused by the accident, which will delay reaching “maximum medical improvement” that would provide a complete picture of your losses, allowing you to proceed to the next step in legal proceedings.  A good attorney will be able to help you navigate these choppy waters.

Q: I am experiencing financial hardship due to Covid-19.  Should I cancel  my car insurance?

A: The answer is no!  If you must reduce your monthly expenses,  then the best course of action would be to first raise your deductible from $500 to $1000 (or more), which would offer an estimated 9% savings.  And guess what? Insurance companies are experiencing a reduction in claims due to the dramatic decrease in driving.  Give your insurance company a call as many providers are offering temporary discounts. Traffic promises to remain light as New Mexico and other states “open up”. Whatever you do, you do not want to drop Uninsured Motorists coverage, legally required by law in New Mexico. Regardless of the condition and age of your car, you might regret dropping Collision coverage.

Q: I went into a grocery store and their workers were not wearing masks.  Can I sue them if I get Coronavirus?

A: Again, we are in uncharted legal territory and it would be impossible to offer solid proof.  A spate of COVID-19 related court cases will revise the new definition of duty of care for businesses. New standards for businesses to follow include increased level of sanitization and crowd control. Nevertheless, it is quite likely that just a handful of these lawsuits will have merit. Only when there is gross negligence is legal recourse a recommended action.

For example, take the current high-profile legal action against Walmart. The suit alleges that managers n Evergreen Park, near Chicago, failed to alert workers after several employees began showing symptoms of COVID-19, the disease caused by the virus.

The lawsuit states that Walmart “had a duty to exercise reasonable care in keeping the store in a safe and healthy environment and, in particular, to protect employees, customers and other individuals within the store from contracting COVID-19 when it knew or should have known that individuals at the store were at a very high risk of infection and exposure”.

Q: What happens to me if I do not follow the mandate to wear a mask?

A: Nothing. New Mexico state police are responsible for enforcing the rules. The police will warn you, but essentially Governor Grisham is relying upon positive peer pressure and those icy cold stares in the grocery store directed at the maskless to encourage compliance. Grisham does not want to burden law enforcement by directing police to hand out the $100 fine, six months in jail, or both which legally it has the right to do. The governor and the state are relying upon on voluntary compliance and the goodwill of its residents.

As an interesting aside, the Federal Government has the authority to enforce isolation and quarantine in the case of communicable diseases.  It derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264). The U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

Q: Can I be personally liable for getting someone sick with Coronavirus?

A: A causal link is required to prove that you are responsible for posing a threat to another person or public. The connection between contact and illness would be nearly impossible to validate. To refer to an analogous situation, it is very difficult to prove STD transmission. Therefore,  it would be even more difficult to prove that you caused the person to contract Coronavirus which is an airborne virus. An exception would be if you were grossly negligent in obvious ways. For example, if you tested Positive for Covid-19 and then knowingly flew to a previously- planned vacation and it was proven that a significant number of plane passengers tested Positive after sharing the same flight. The duty to prevent the transmission of the virus, mandated by respective governments will have been breached.

Q: I run a small store. How will my responsibilities to my customer’s safety be changing due to Covid-19 and where can I find out information about my duty of care?

A: It seems that Covid-19 will be circulating in the population for some time to come.  A higher standard of cleanliness and care will likely apply translating to evolving standards of duty of care.  These higher standards of care are in the process of being defined as we speak. Regularly checking city, state and federal websites should keep you informed regarding your responsibility as a business owner.

PSKB is hard at work during the Covid-19 Pandemic with all the resources needed to move your case forward or begin a new one.  We are here to help especially and even more during these uncertain times.  Please give us a call at 505-982-5380.

 

 

 

Winter Driving Tips

Winter is here and now a beautiful blanket of snow is covering the mountaintops of Northern New Mexico. It’s a time to make sure your woodpile is stocked and your house is checked for any drafts or other leaks. But if you are like most New Mexicans, little or no preparation goes into the transition to winter weather driving, which can put you at risk.

In 2006, James Kim, Senior Editor at CNET, was driving back from Thanksgiving in Seattle to San Francisco with his wife and family and took several wrong turns when exiting Interstate 5 on his way to the Pacific coast. They bottomed out in a heavy snowstorm 11 miles down a remote logging road. They ran out of food and then the gasoline that was keeping them warm. With just a pair of tennis shoes and a light jacket, James ventured out to find help. Tragically, James died of hypothermia in his attempt. Thankfully, his family was discovered by a rescue team and they all survived.

James’ story is a worst-case scenario of what can go wrong, but there is much you can do to make this winter safe and comfortable for you and your family. Let’s take a look at the good ideas for winter driving prep.

CAR PREPARATION
During the scheduled maintenance of your vehicle closest to winter, make sure your mechanic checks the condition of the battery and the heating system. Also, have them make sure the tires are in good condition, inflated to the correct tire pressure. Driving around in underinflated tires provides less control of your vehicle.
Keep at least a half a tank of gasoline in your car, needed to not just keep the cabin warm by running the engine in case you get stuck (even for a couple of hours), but more importantly to keep the fuel lines from freezing. At -5° you may have difficulty starting the car because the fuel is not warm enough.

DRIVING IN SNOW
You know what the best solution for driving in snow? Don’t drive! However, for most people that is not realistic. Here are some basic tips for driving in snow:

  • Drive at least 10 miles an hour below the speed limit
  • If you start drifting, turn your wheels into the direction of the spin
  • Accelerate and brake very slowly
  • Don’t stop! Keep moving and rest the ball of the foot very gently on the brake
  • Make sure you remove snow on the top of the car cab as falling snow can in itself cause an accident
  • Keep plenty of space between you and the car in front of you
  • Wear a seat belt at all times
  • Do not use cruise control

PREPARING FOR DRIVING IN SNOW
Lee might still be alive if he took the time to let a friend or family member know his itinerary and route. So that is the first and most important step when planning a drive through snowy territory. If for any reason you do get stuck, the first step is to call for help. Cell phones can stop working if they get too cold. Stay in the car and wait for help. Use a bright cloth or object to make the car more visible – such as an item of cloth laid out on the hood. Conserve precious gasoline by turning engine on and off intermittently to heat the cab. Check your tailpipe to make sure it is not clogged from compacted snow. This would cause a deadly backup of dangerous carbon monoxide into the interior of the car.

EQUIPMENT AND CARE PACKAGE
During the winter months, stock your car with the following care items. Some people just store these items together in a small storage bin kept in the house during the summer months and brought out to the car for the winter:

  • Snacks
  • Blankets
  • Water
  • Essential medicines
  • Extra items of warm clothing for the family

And here’s equipment you should always have on hand in the car:

  • Flares
  • Ice-scraper
  • Flashlight
  • Extra batteries
  • Cell phone charger
  • Jumper cables
  • Shovel

It’s a winter wonderland around Northern New Mexico and fun abounds. Make sure you are prepared for a safe driving winter by following these tips.

Texting While Driving

The temptation is great.  You are in your car on your way to a restaurant and running late.  You want to inform your friends — you’ll be there in 10 minutes.  You grab your phone and start texting, only to look up a few seconds later seeing the rear end of the car in front of you coming up on you fast. You slam on the brakes. Safe this time! It’s happened to pretty much everyone with a smartphone at least once.

According to the National Safety Council, crashes caused by hand-held cell phone use while driving accounts for 1.6 million accidents each year in the United States. And among those, roughly 390,000 injuries occur each year from accidents caused by texting. That means one in four accidents now in the United States are caused by texting while driving – an epidemic. When you text, you take your eyes off the road for an average of 4-6 seconds, a 400% increase of time spent with eyes off the road. Driving at 55 miles per hour in 5 seconds is the equivalent of travelling the entire length of a football field! A lot can happen in 5 seconds.

The real tragedy is that accidents caused by texting are totally preventable, and the group most likely to fall victim to the texting temptation are teenagers.  According to the National Highway Traffic Safety Administration, 20% of drivers aged 18-20 say texting does not affect their driving, and worse 30% of those aged 21-34 feel the same. And it’s no surprise that of among 3,166 people killed by distracted driving in 2017 in the United States, the largest age group represented were teens.

The top causes of distracted driving, of which texting is just one activity, include the use of GPS, adjusting music or car controls, talking on the phone, and applying makeup, so extra care needs to be applied when engaging in these other more essential actions (except for the makeup!). As an aside, drivers engage in a scary range of activities while travelling in their cars, including singing while travelling down the road and eating a meal, and cursing at other drivers — according to Pew Research.

In 2014 New Mexico made it illegal to text or talk on a phone while driving. In all but four states an officer can pull you over and ticket you just for texting or using a hand-held phone. The law however does not apply to hands-free devices, GPS, or devices integrated into the vehicle. The first fine for texting is $25, the second $40. A texting driver is legally liable for damages ensuing from an accident of their making.

If you are involved in an accident caused by a texting driver:

  • Call 911
  • Accept medical attention, even if you think you are not injured
  • Take as many photos as possible
  • Secure witness statements
  • Inform the officer you think the other driver was on their cell phone

What makes these actions so essential in this kind of accident is that it may be necessary to subpoena phone records of the driver who caused the crash. An attorney is the only person who can subpoena phone records. Prince, Schmidt, Korte and Baca can help.  Please call us for a free consultation.

 

 

 

Getting The Maximum Allowable From An Auto Accident

If you are like most people, you may have been involved in an auto accident or two in your life, your fault or not.  And like most, you think the reimbursement to you for injury or damages is non-negotiable.  Not so.  There are many actions you can take to receive the maximum amount you deserve in the aftermath of an accident.  The insurance company is committed to handing out the minimum amount reimbursement for your claim.

This first line of defense in protecting your rights is to collect evidence and information at the accident scene.  Collect names of those involved in the accident, the year, make model of their car including license plates, obtain witnesses, gather insurance info and driver’s licenses.  Call the police, but do not rely on the police to file a report, and most certainly do not admit fault.  Do not make a recorded statement to an insurance adjuster.  Do not say you were not injured.

You do not have to accept the first amount that an insurance company presents to you.  Research the value of your car and its repairs by visiting several local mechanics.  Kelly Blue Book and Edmunds are reliable online resources to help you calculate the current value of your car if the car is a total loss.  Total loss does not mean your car is a smoking heap; rather it means the cost of repairs exceeds as little as 51% of the current value of the car.  Claim a higher value for repairs. Unless your car is less than one year old, expect the insurance company to use aftermarket parts. Some companies will consider a 2-year-old car new but anything beyond that will get aftermarket and used parts. You will have to pay extra for new replacement parts.

You do not have to accept the first offer an insurance company offers you!  Ask them to justify their first offer.  Also, keeping receipts, for example for new tires and other improvements will assist in increasing the declared value of your vehicle.  Push for a higher valuation.

New Mexico is an at-fault state, meaning each driver is assigned a percentage responsibility.  Clear cut responsibility is assigned to the following accident types:

  • Rear-ending
  • Drunk driving
  • Texting while driving
  • Right of Way issues
  • Crossing the middle line
  • It gets sticky in less clear-cut situations which is why gathering information at the scene of the accident is so important.  Fault is distributed after a determination is made in proportions. For example, at a trial, the jury decides that the total amount of damages is $100,000. You were 80 percent at fault, and your opponent was 20 percent at fault. In this situation, you would be able to recover 20 percent of $100,000, which is $20,000 of damages

Keep in mind the insurance company does not want to go to court on these accidents, so a little higher value for your vehicle or its repairs is an attractive alternative to legal proceedings. You do not need to rush.  Especially when bodily injury is involved you may find that seeking legal representation is the way to go.  Prince, Schmidt, Korte and Baca is here to help you should you need legal assistance.

Top Mechanical Failures Causing Auto Accidents

New Mexico is one of the more dangerous states in which to drive, ranking 22nd of the most unsafe states to drive. But that doesn’t mean that we drive poorly. 75% of all vehicle accidents occur on rural roads, and New Mexico, with a population of just 2 million, has a large percentage of rural roads. Rural roads pose a greater danger for drivers.  It is tempting to speed on those roads less travelled, while drivers in rural areas are also less inclined to use a seat belt.

The overwhelming majority of traffic accidents are caused by failure on the part of the driver, whether it be distracted driving, driving under the influence, or just plain not following the rules of the road.

However, approximately 6% (NHTSA) of accidents are caused by mechanical failure, environment or unknown causes.  You can reduce your chances of getting involved in a car accident not only by being a good driver, but also by making sure your car is properly maintained. The following, listed in order, are the common mechanical failures leading to car accidents. This will inspire you to “run” to your auto repair shop.

Tires

Tire failure causes roughly 35% (NHTSA) of the crashes where vehicle failure was involved.  A blowout involves a sudden loss of air pressure in a tire which then pulls the vehicle sharply in one direction, resulting in loss of control.  A worn tire can cause a blowout, so can a puncture.  However, worn tires pose an additional risk, since they lose their grip, making it harder to stop or otherwise control the car, especially when it is raining. If your tires have low tread, don’t delay in replacing them with new tires.

Keeping your tires properly inflated, rotated and aligned will lengthen the lifespan of your tires, but there’s no way around it when it is time to replace those treads.  Your vehicle manual will guide you in the proper maintenance of your tires.

Brakes

Brake failure makes up around 22% (NHSTA) of all accidents involving mechanical failure.  No explanation is needed regarding the danger bad brakes pose.  That goes for bikes, planes, trains and go-carts.  If you can’t stop your vehicle, you can’t stop hitting what’s in front of you.

Brake problems by and large result from a lapse in maintenance.  If you are hearing a metallic scraping when you apply the brakes, it is definitely past time to visit the shop. Worn pads and discs will reduce stopping power.  However, a leaky brake line or an ABS malfunction can also put you at risk. Regular trips to the auto shop and brake inspection will easily let you know if your brake pads are getting thin. Once your pads have passed 30,000 miles, it’s time to start saving up for new brakes.

Steering

A steering failure is somewhat rare, but statistically is the third major cause of accidents (3%) due to mechanical failure. Anything that compromises the ability to steer, whether that be suspension problems, an engine fault, or a broken joint is regarded as a steering failure.

If you keep the vehicle in good repair, it’s not likely that a failure of this sort will put you and your loved ones in harm’s way. It’s a good idea to ask for a full vehicle inspection at least once a year using electronic diagnostic tools to check for any hidden faults your on-board computer has found.

Wipers and Lights

Wipers provide visibility when it is raining, snowing, hailing, or even when mud from the road flies up.  Ever had a juicy batch of bugs hit the window while driving, limiting visibility? Or ever tried to drive in a heavy rainstorm without windshield wipers? Replacing blades is part of basic vehicle maintenance and should be done as they start to degrade to prevent an accident. A lack of good blades on your vehicle could demonstrate that you did not maintain your vehicle properly if an accident and resulting insurance claim occurs.

The same idea applies to the lights on your vehicle. If you have a broken light, you may not be visible to other drivers, putting you and the other driver at risk. You may minimize the importance of replacing a tail light or even a fog light.  Don’t!  And if you don’t get them replaced and get in an accident it can jeopardize your chances for compensation.

402 people lost their lives in New Mexico, 2016. But overall, New Mexico can tout a decline in traffic fatalities of 28% since 1975. Way to go, New Mexico! The overall decrease in the death rate is attributed to higher awareness of the danger of drinking and driving, as well as high compliance with seat belt laws. Assuring your vehicle is in good working order and that you abide the rules of the road will keep you from becoming one of these statistics!

New Mexico Must Prepare as Future of Autonomous Vehicles Coming Soon

Semi-autonomous vehicles are already operating on New Mexico roads! This article by Matthew Reichbach, published in the NM Political Report goes into New Mexico’s preparations for the Inevitable driverless takeover.   Senator James White, Republican, of the New Mexico State legislature will be introducing legislation that will bring New Mexico up-to-date in the self-driving space.  California has already passed a law that goes in effect April of this year that allows remote, driverless vehicles on the road, for now with a remote operator “behind the wheel.”

Autonomous vehicles are coming. Soon — and New Mexico needs to be ready.

That was the message from a recent summit on autonomous, or driverless, vehicles organized by the state Department of Transportation. Local officials, technology experts and even industry representatives all agreed legislators need to understand the technology before changing laws or other policies.

Earlier this year, Sen. James White, R-Albuquerque, introduced a memorial asking NMDOT to organize the summit and get New Mexico ready for autonomous vehicles.

While some predict widespread use of fully autonomous vehicles is decades away, White said it could be closer to 5-to-10 years away. And in fact, some semi-autonomous vehicles are already on the road today.

“The industry is fast defining what we do here in this realm,” Charles Remke, director of New Mexico Department of Transportation ITS, told attendees.

Tyler Svitak, the Connected and Autonomous Technology Program Manager at the Colorado Department of Transportation, said states need to define what they want and need from autonomous vehicles — before the fast-growing industry does it for them. Industry is open to partnerships with states, he said, but states must first establish goals and lay out a strategy.

MORE: New Mexico lawmakers discuss self-driving cars

While commercially available vehicles that can safely drive without any human interaction are years away, semi-autonomous vehicles are already on the roads, including on New Mexico’s highways. Automated semi trucks cruise across Interstate 10 in southern New Mexico on regular trips between Los Angeles and El Paso.

Jonny Morris is the Head of Public Policy at Embark, the company which operates those trucks to deliver air conditioning equipment.


“The industry is fast defining what we do here in this realm.”


Charles Remke, director of New Mexico Department of Transportation ITS

He explained that the company uses the automated systems from “exit to exit” on highways, though human drivers still navigate surface streets in cities. Even when automated, those trucks still have CDL-licensed drivers who are required to have their hands on the wheel at all times and to take over if there is a problem.

The SAE, an organization of scientists and engineers in the automotive industry, has five levels of automation with cars. According to the National Highway Traffic Safety Administration, which adopted the standards, Level 1 includes vehicles with automatic braking and cruise control. Level 2, or partial automation, cars assist with steering or acceleration, but the driver must stay engaged.

RELATED: Staying ahead of the robot apocalypse

The next big leap is to Level 3, conditional automation, where a driver is needed and expected to jump in and take over. This includes currently available products like “autopilot” modes in cars like Teslas. At Level 4, the vehicle can drive itself under certain conditions, with no input from the driver. The driver would have the option to take over and control the vehicle themselves. At Level 5, the vehicle can drive itself under all conditions — and might not even have the option for the human to take over.

Levels 4 and 5 are what most people think of when picturing fully automated, driverless cars.

It isn’t necessarily personal vehicles where automation will occur first on the roads.

Cruising I-10 already

Like Embark, other trucking companies and manufacturers are already exploring automated vehicles. Budweiser used “Otto,” a self-driving truck, to deliver beer in a highly promoted public relations act.

But in New Mexico, it’s the I-10 corridor that could see big advances in automated trucks. And already, something called “platooning” is being used to make hauling cargo by truck more efficient.

Steve Boyd, the founder and vice president of external affairs for Peloton Technology, talked about the technology that would allow semi trucks to communicate with each other and “draft.” While drafting, trucks sync with those in front of them, allowing them to match the acceleration and braking of the lead truck. Drafting increases fuel mileage and may decrease accidents.

MORE: Many unprepared for the automated world to come

This can already take place on New Mexico’s highways without any needed upgrades to existing systems.

The infrastructure automated vehicles need is in line with what many human drivers want already.

“We need well-maintained roads, well-marked roads,” Embark’s Morris said.

Ed Bradley, a program manager with Toyota agreed and added that connectivity with systems put in place along roads would “help, but it’s not required.”

Colorado is already working on connectivity and has a $72 million connected vehicle network in the works, in partnership with Panasonic. The system will run from Golden to Vail on I-70, 90 miles of the most dangerous road in the country, and will eventually help automated vehicles more safely travel the area by interacting with the vehicles.

The most costly part of this is the new infrastructure — and its digital technology is “invisible” when compared to infrastructure like roads and bridges.

The deadly collision between an Uber autonomous vehicle and a pedestrian near Phoenix is bringing calls for tougher self-driving regulations (March 20) AP

Safety concerns

Shortly before last week’s meeting, an autonomous vehicle from Uber killed a pedestrian it failed to detect crossing the street. The incident hung over the meeting, and a representative from the company, scheduled to speak about Uber’s trucking efforts, canceled.

Still, experts anticipate that accidents will decrease when fully automated cars are on the roads.

“If we have autonomous vehicles programmed to follow the law, what the hell are we going to do?” State Police Chief Pete Kassetas joked.

He said that a reduction in accidents would reduce the work for state police.

Kassetas also said drug traffickers using autonomous cars might no longer be pulled over for traffic violations, such as speeding.

“But the tradeoff is good,” Kassetas said.

RELATED: Tesla working on Autopilot radar changes after crash

Not all accidents would be eliminated. Which brings up its own series of questions: Who would pay for a serious injury or death when an autonomous vehicle hits a pedestrian? And how would liability for crashes between two autonomous vehicles differ from current law?

Those are questions that Santa Clara University School of Law Professor Robert Peterson studies. And there are no real answers yet.

Right now, 94 percent of crashes are due to human error or judgement, he said. That would change with autonomous vehicles, as would the liability for manufacturers. Currently, accident claims go through auto insurance. In the future, they may go against the manufacturer — which has higher caps than auto insurance claims. And damages to equipment would also be more expensive, since expensive equipment would be placed behind the bumper, causing potentially thousands of dollars of damage in relatively minor accidents.

Despite the negative attention from the fatal Uber accident and the uncertainty facing the technology’s future, White doesn’t see any opposition to legislation that comes from the summit and other meetings before next year’s legislative session.

“This is kind of a bipartisan issue,” he said. “Usually the pushback comes from social issues and not technology stuff like this, improving safety. “

White expects to introduce legislation in next year’s legislative session to bring New Mexico into the autonomous vehicle future.

Matthew Reichbach writes for the The NM Political Report.