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Bike Accident Resources and Information

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Bicycle Accidents In Miami

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The lockdown and stay at home orders caused bicycle sales in Miami to surge. Naturally, more cyclists leads to more accidents.

In Miami, bicycles are not only a source of exercise and recreation but also a preferred mode of transportation for many of its inhabitants.  Miami has pleasant weather suitable to ride bicycles.

 Bicyclists ride on streets and highways never suspecting that their lives could be endangered in a span of few seconds due to the negligence of someone else.

We, at the law offices of Kaire & Heffernan, have extensive experience in successfully handling bicycle accident cases in Miami and all over Florida.  A primary part of our Personal Injury Practice involves representing bicyclists injured in  accidents.

BICYCLE ACCIDENTS AS A CAUSE OF SERIOUS INJURY.

Bicyclists usually follow the safety regulations by wearing protective gear and reflective clothing respectively, but are prone to being seriously injured in accidents that they are involved in.  Common injuries sustained in bicycle accidents are ;

  • Broken bones.
  • Concussions.
  • Dislocations.
  • Sprains and strains.
  • Lacerations.
  • Traumatic brain injuries.
  • Nerve injuries.
  • Accidental amputations.

This injuries can have long term or even life long consequences.  This injuries require immediate medical attention and can result in disabilities that can prevent victims from ever returning to work or even living a normal life on their own.

COMPENSATION FOR BICYCLE ACCIDENT.

The utmost concern for a bicyclist involved in a accident is whether he or she will be able to recover compensation for  medical expenses, pain and suffering, lost income and adverse effect on quality of life. In majority of the  accidents, bicyclists are injured due to the careless acts of others and are entitled to compensation.  Some of the common causes of serious bicycle  accidents are; 

  • Speeding of other vehicles.
  • Failing to yield to the right of way.
  • Following too closely to bicycles.
  • Running stop signs.
  • Poorly maintained roads.
  • Defective bicycle manufacture or design.
  • Substandard vehicle maintenance.
  • Road Rage.
  • Defective protective gear (helmets & pads).

In most instances, bicyclists suffer injuries without being at fault.

WHY HIRE KAIRE & HEFFERNAN ?

Insurance companies notoriously try to get away with paying less compensation to accident victims. We, at Kaire & Heffernan possess numerous years of experience, legal knowledge and expertise to successfully make the Insurance Companies pay appropriate compensation.  

As avid bicyclists ourselves, we are sensitive and sympathetic to the claims of the injured bicyclists.  We personally pedal the routes undertaken by our injured clients and also drive the route to get proper understanding of how the accident occurred.  We rely on the testimony of bicycle experts in the Courts of law with regard to road conditions, car/ bicycle speeds and other relevant factors related to each accident.  We help our clients obtain the advice and opinion of the best medical experts in evaluation of their injuries.  We personally Interview individuals who witnessed the accident and thoroughly investigate each accident.

If you have been injured riding a bicycle due to a negligent act of someone else, you deserve to be duly compensated for the injuries suffered and other damages.

Call our Miami Personal Injury Attorneys for a free case evaluation right away.

Bike Lights

Are Bike Lights Required in Florida?

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Riding a bike is one of the best ways to get from place to place, particularly in Florida, where gorgeous weather and scenery abound. Unfortunately, bike riding can often be dangerous — especially in the Sunshine State, which routinely ranks among the top states for bike accidents in the country.

There are a number of laws that exist to help keep Florida cyclists safe. These include laws regarding the use of headlights. Following these rules can help protect you — and may even prevent an accident.

Whether you are an avid bicyclist or only ride occasionally, it is important to know and understand the requirements for bike lights in Florida. Beyond that, you should take common-sense precautions to avoid being in an accident. If you have been injured in a bike crash, a bike accident lawyer in Miami can help.

Florida Law on Bike Lights

In Florida, bicycles are considered vehicles. If you are going to ride on the roads within the state, you must obey basic laws and regulations. Failing to do so could not only lead to a citation — but it could also lead to an accident.

The basic rule for cyclists in Florida is that you must have specific types of lighting on your bike if it is ridden between sunset and sunrise. Under the law, the following bike lights are required during this time period:

  • Front lamp: this lamp must project a white light that can be seen from a minimum of 500 feet away.
  • Rear lamp: this lamp must project red light that can be seen from a distance of 600 feet or greater.
  • Red reflector: this reflector must be placed on the rear of the bicycle and exhibit red light that is visible from a minimum distance of 600 feet.

If you violate this law, a law enforcement officer may issue a verbal warning, along with a bicycle safety brochure, or may issue a citation and fine. If you show proof that you have purchased and installed proper lights on your bike, the court may dismiss the charge for a first-time offense.

While Florida specifies the kind of lights that must be on your bike if you ride in low light conditions, it does not prohibit the addition of extra lights. For example, you may want to put lights on the wheels of your bike or otherwise add lights to increase visibility when biking at night.

How to Bike Safely in Florida

The laws regarding bike lights at night were enacted for a reason. Riding your bike after dark is particularly dangerous. According to the National Highway Traffic Safety Administration (NHTSA), there were 857 cyclists killed in traffic accidents in 2018, including 125 in Florida alone (the top state for bike fatalities). The majority of bike fatalities occur at night, with 21% occurring between 6:00 p.m. to 8:59 p.m., and 17% happening between 9:00 p.m. and 11:59 p.m.

Bicycle lights help to avoid the possibility of fatal or serious crashes in two ways. First, the front headlight illuminates the road before you, allowing you to spot and then avoid any hazards. Second, bike lights make you more visible to others on the road, reducing the risk that you will be hit simply because a driver does not see you.

If you are a bicyclist, you should take the following precautions whenever you ride:

  1. Always wear a helmet. Not only is it required for anyone under the age of 16, it is a smart idea. Helmets can significantly reduce the possibility of being seriously injured or killed in a crash.
  2. If you are biking in low light conditions, make sure that your bike is equipped with the appropriate lights and reflects, and that they are in working order.
  3. Wear reflective gear and/or bright colors to make yourself more visible to others on the road.
  4. Obey all traffic control signals.
  5. Be alert to your surroundings, and keep both hands on your bike so that you can brake if necessary.
  6. Bike on the right side of the road, with the flow of traffic.
  7. Do not pass on the right.
  8. Learn and use hand signals.
  9. Do not ride your bike during a storm.
  10. Use bike lanes when possible.

While you cannot prevent others from driving carelessly, taking these steps may help to reduce the risk of being hit by a vehicle or otherwise being in a crash.

Questions? We’re Here to Help.

A bike accident can lead to life-changing injuries or even death. If you have been in a bicycle collision, a skilled bike accident lawyer in Miami can help you get the compensation that you deserve. This may include damages for past and future medical treatment, lost wages, pain and suffering, and more.

Kaire & Heffernan is dedicated to helping Floridians who have been injured in all types of accidents, including bike crashes. Established in 1997, our firm works hard to help victims of personal injury accidents get the money that they deserve for their injuries. we focus our practice on all types of personal injury claims. Contact us today at 305-372-0123 or email us to schedule a free initial consultation.

bike insurance

Do You Need Electric Bike Insurance?

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In 2020, we have more ways to get around than ever before. Following the popularity of electric scooters like Lime and Bird, one of the newest trends is electric bikes or e-bikes. These bikes often look and handle like regular bicycles, but they contain an integrated electric motor that can be used to propel the bike. Unlike motorcycles or mopeds, however, cyclists retain the ability to pedal the bike.

In 2017, more than 34 million e-bikes were sold around the world. While the majority of these bikes were sold in Europe and China, an increasing number of electric bikes have been sold in the United States. Companies like Uber are getting in on the trend with the purchase of Jump Bikes.

While e-bikes may be the future of transportation, there are still significant safety issues for those who ride them. These bikes are capable of speeds of up to 25 or 30 miles per hour (mph).   This makes them potentially dangerous, particularly in the hands of inexperienced riders.

According to one study, just 6% of bicycle accidents sent the rider to the intensive care unit (ICU). In contrast, 20% of e-bike crashes landed the rider in the ICU. These results highlight the risks involved in riding an e-bike.

If you are considering purchasing an electric bicycle — or if you already have one — you should familiarize yourself with Florida law on the use and operation of these bikes. If you are involved in a crash, an experienced Miami bike accident attorney can work with you to help you recover for your losses.

Florida Laws on Electric Bikes

In the state of Florida, e-bikes are classified as bicycles as long as the bike is capable of being propelled by human power, and its speed does not exceed 20 mph. You do not need a license to operate an e-bike, but riders must be over the age of 16. You also do not have to register your e-bike or get a license for it as long as its top speed is 20 mph or less.

Significantly, Florida law does not require you to have insurance for your e-bike — just as you do not have to purchase insurance for a bicycle. However, it may still be a good idea to buy this type of insurance if you have an electric bicycle for a number of reasons.

First, an e-bike is an investment. While most models cost $1,000 to $3,000, some are priced at $8,000 or more. An insurance policy can help you pay for damages to the bike, and may cover the cost of a new bike if yours is lost or stolen.

Second, because the risk of serious injury is higher on an e-bike than on a conventional bicycle, liability coverage is a good idea. This type of insurance will cover the costs of injuries and/or property damage to another person if you cause an accident. If you are hurt in an e-bike accident, the insurance policy of the other party may cover your damages.

If you do own an e-bike or are considering purchasing one, you should talk to your insurance agent about the possibility of obtaining insurance for it. Even though it is not required under Florida law, it may be worth the cost to have peace of mind.

How to Safely Ride an E-bike

Most e-bike crashes are caused by either negligence or recklessness. If you have an e-bike, you should be aware of the heightened risks associated with riding it. For example, if you strike a pedestrian while riding an e-bike, the possibility of both of you being seriously hurt is much greater given the e-bike’s comparatively high rate of speed.

A person who crashes their e-bike or is hit by another cyclist or driver may suffer any number of injuries, including:

  • Broken bones
  • Head trauma, such as a concussion or traumatic brain injury
  • Abrasions, lacerations and/or contusions
  • Dislocations
  • Internal bleeding
  • Spinal cord injury or paralysis

To reduce the risk of an injury while riding your e-bike, you should take a number of precautions. First, before you get on an e-bike, make sure that you are properly trained on its use. While they make look like regular bikes, there are significant differences — and you’ll need to learn about those differences to safely ride an e-bike.

Second, always wear a helmet when riding an e-bike, even though you are not required to do so. A helmet can save your life in an accident, particularly when you are traveling at a higher rate of speed than you would on a bicycle.

Third, follow basic safety rules, such as riding with traffic, using the bicycle lane when available, and using your lights at night. You should always be alert when riding your e-bike and watch out for reckless drivers. Note that e-bikes have been banned in some Florida cities, like Fort Myers.

Fourth, make sure that your e-bike is in good condition before heading out on it. Make sure that the tires are properly inflated and that other components are in working order.

By following these steps, you can reduce the risk of being in an accident on your e-bike. If you are in an accident while on your e-bike, a Miami bike accident attorney can help you recover the damages that you

Reach Out Today to Schedule a Risk-Free Consultation

Electric bicycles are a fun way to get around, but they present unique dangers because they can go much faster than traditional bikes. Following Florida law regarding bike safety is a good way to reduce the likelihood of being in an accident. If you are involved in a crash,  contact a Miami bike accident attorney for help.

At Kaire & Heffernan, we strongly believe that victims of others’ negligence deserve fair compensation for their injuries. We will fight for you, and stand by your side throughout the legal process. Contact us today at 305-372-0123 or email us to schedule a free initial consultation.

Florida Needs Stricter Traffic Laws.

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On November 25, 2018, 34-year-old, Nicole Vanderweit, was driving 70 miles per hour in a 55 mile per hour zone when she drove into a pack of cyclists.  The “accident” resulted in two fatalities and left five others injured. 

Vanderweit claimed the sun impacted her ability to see the road clearly and that she may have looked down briefly to reach for a pack of cigarettes prior to the collision. Crash experts determined Vanderweit should have been able to see the cyclist’s group 10 seconds before the collision, however Vanderweit only began to brake between 1.1 to 2.5 seconds before making contact with the group. 

When is an accident, not an accident, but rather a foreseeable event? Does driving 70 MPH with the sun in your eyes on a street you know is used by cyclists rise to that level?

The court determined that despite the irresponsible and careless driving, it did not rise to the level of vehicular homicide. This week, the court rendered its sentence:

  A suspended license for six months;

              A four-hour driving improvement course; and

              120 hours of community service.

This begs the question as to whether stricter standards must be put in place in order to deter activity like the one in Vanderweit’s case. Two individuals lost their lives that day and the harshest portion of the punishment is a suspended license for half of a year. If  the sunlight did impact her view of the cyclists,  as she alleged, then Vanderweit should have slowed down, rather than drive 15 miles per hour above the set speed limit. 

In order for Vanderweit to have been charged with vehicular homicide, prosecution would have to prove that she demonstrated a “willful or wanton disregard for safety.” In the case at hand, the prosecution deemed this was not the case.

However, until these relaxed standards are changed, it will continue to be difficult to protect cyclists, pedestrians, and effectively carry out justice on behalf of those families affected and all the future families that may be affected. 

Why Bike Lanes Should Have Physical Protection from Car Traffic

Why Bike Lanes Should Have Physical Protection from Car Traffic

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In Florida, we are fortunate to have the kind of weather that allows us to get outside almost every day of the year. Yet many of us avoid doing one outdoor activity in particular, and for good reason: riding a bike in many Florida cities — particularly in Miami — is simply not safe.

Although the state of Florida and many cities have installed bike lanes on roads throughout the state, these lanes are little more than painted lines on the side of the road. As demonstrated by the number of people hurt or killed each year in Florida bike accidents, these lanes do little to protect bicyclists. Too many people are suffering broken bones, lacerations, brain injuries, and more after being hit by cars, trucks and SUVs.

A recent study offers data to back up what activists have long claimed is the best way to protect bicyclists: a physical barrier between bike lanes and car traffic. If these types of lanes are installed in Miami, we could see a dramatic increase in the safety of bicycling — and more people out riding their bikes as a result.

The Dangers of Bike Accidents in Florida

In Florida, there are extensive laws and other systems designed to protect bicyclists from danger. This includes road designs such as shared lane markings (“sharrows”) and bike lanes where bicyclists can ride. Yet despite these efforts, accidents and fatalities continue to rise across Florida — including here in Miami.

According to the Florida Department of Highway Safety and Motor Vehicles (FLHSMV), in 2018 alone, there were 6,568 bicycle crashes in Florida. 148 bicyclists died as a result of those accidents. In Miami-Dade County, there were 817 bicycle crashes in 2018, which included 18 fatalities.

The Miami Herald reports that Miami is consistently ranked as one of the most dangerous places in the United States for bicyclists. The city averages 7.9 bike fatalities for every 10,000 commuters each year. Miami is known for driver hostility towards bicyclists and lack of safety.

When bicyclists collide with motor vehicles, the cyclist takes the brunt of the injury. Whether the crash is due to distracted driving, speeding, or simple inattention, when a large object hits a relatively unprotected person, the results can be disastrous. Victims of bike accidents often suffer severe or even fatal injuries.

Although South Florida’s climate makes it an ideal place to bike nearly year-round, without a safe way to do so, residents and tourists alike will not engage in this activity. One solution to this issue may be to upgrade our bike lanes to better protect cyclists from drivers.

How Physical Protection Can Help

A recent study from Monash University in Australia shows how a simple line of paint is generally not enough to protect bicyclists from drivers.  The study’s authors collected data from 60 cyclists in Melbourne who rode their bikes with a device that quantified the distance that drivers provided them while passing. Over the course of the study, these devices recorded more than 18,500 vehicles passed bicycles in 422 trips.

The results may surprise you — unless you are a regular cyclist. Out of every 17 vehicles that passed a bicyclist, one came within 1 meter (3 feet, 3.37 inches) of the bike. 124 vehicles came within 60 centimeters (23.622 inches — less than 2 feet)! In higher speed zones (the equivalent of 40 mph or greater), almost 1 in 3 vehicles came within 150 centimeters (59 inches).

This study demonstrated what many bicyclists already know: lines of paint delineating a bike lane do little, if anything, to protect cyclists from motor vehicles. According to the study’s lead author, Dr. Ben Beck, “We know that vehicles driving closely to cyclists increases how unsafe people feel when riding bikes and acts as a strong barrier to increasing cycling participation.”

The solution to make bikers safer and reduce the number of accidents and fatalities is relatively simple: put physical barriers between bicycle lanes and lanes of traffic. This will decrease the likelihood that cars will strike bicyclists as they are forced to overtake them. It will also end the practice of bicyclists and drivers having to share a lane.

How a Miami Bike Accident Lawyer Can Help

Each year, far too many Floridians are injured and die in bike accidents. We can stop this epidemic by taking common sense action, like putting up physical barriers to protect cyclists in bike lanes.

Kaire & Heffernan is a Miami-based law firm that represents victims of bike accidents and other types of personal injury lawsuits. With deep Florida roots, we strongly believe in the right of all victims to get justice and compensation for their injuries. To learn more, contact our office at 305-372-0123 or online to schedule a free initial consultation with a Miami bike accident lawyer.

Passage of FL Claim Bill Approves a $1.45M Settlement After Cyclist Struck by County Bus Driver

Passage of FL Claim Bill Approves a $1.45M Settlement After Cyclist Struck by County Bus Driver

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Eric Tenner was an avid cyclist who was conscientious of bicycle safety and wearing the recommended equipment associated with riding. He had a happy family life with his wife, Maria, and their two young children. By all accounts, The Tenner’s were heading towards a loving and bright future.

Unfortunately, Mr. Tenner was involved in an accident that would change their lives forever. His survivors would eventually file a lawsuit against Miami-Dade County and receive special consideration on damage caps against the government.

The Day of the Accident

During his regular morning exercise routine, Mr. Tenner stopped just south of the intersection at SW 124th and US-1 Busway in Miami-Dade, County. Unexpectedly, a bus driver, Jose Sequeira, struck Mr. Tenner from behind. The competitive cyclist died just days later while in the care of Kendall Regional Medical Center in Miami.

Police subsequently arrested Mr. Sequeira after leaving the scene of an accident. The case against him was particularly damaging since he caused severe bodily harm to Mr. Tenner. The State of Florida eventually dropped criminal charges against him since it was unable to prove Mr. Sequeira knew he had struck a cyclist.

A Second County Bus Driver Becomes an Eye-Witness

A second bus driver, Miguel Mora, was driving directly behind Mr. Sequeira and witnessed the entire event. He pulled over to provide medical assistance to Mr. Tenner while on his regular route. During the trial, Mr. Mora testified that it was a common occurrence to experience heavy pedestrian and cycling activity in the area.

He also attested that pedestrians are frequently struck by motor vehicles at the same intersection where Tenner met his fate. He stated that bus drivers are always on “pins and needles” due to the lively nature of the intersection and surrounding locations. “As professional bus drivers, they are held to a higher standard. They’re constantly getting hit. There’s a lot of accidents on the Busway,” said Mora.

The Lawsuit

During any given lawsuit, Florida laws require the parties to exchange information and evidence as par for the course. This period is known as the ‘discovery phase.’ In this particular case, Miami-Dade County attorneys stated that the busway is limited to use by emergency and transit vehicles only.

This assertion was a hotly contested issue during the lawsuit. The main question kept returning to whether Mr. Sequeira should have been able to reasonably see and anticipate the presence of pedestrians and bicyclists in the area before sunrise.

Sovereign Immunity Limits Played a Role in the Case

Initially, the courts allowed both parties to skip the typical mediation phase of a lawsuit. Mediation is a formal meeting of the plaintiffs, defendants, and their attorneys to resolve the case out-of-court. Doing so reduces stress on an already overcrowded legal system.

The mediation requirement was waived since Mr. Tenner’s survivors would not voluntarily accept the state’s sovereign immunity limits. As time progressed, both parties reconsidered the possibility of settlement negotiations that reflected contributed negligence from both sides.

Expert Testimony Raises the Bar on Damages

On May 16, 2017, Fred Raffa, an economist, testified that the Estate of Eric Scott Tenner suffered losses in excess of $3.5 million. The defense did not argue with this number. However, sovereign immunity laws capped damages against government entities to $300,000.

A Claims Bill Increases Access to Justice

On April 17, 2019, the Florida Senate passed HB 6513, also known as ‘the claim bill.” Instead of limiting damage caps to $300,000, HB 6513 sought approval to pay Mr. Tenner’s estate $1.45 million.

Gov. Ron DeSantis signed the bill and was enacted to pay a fair sum to Tenner’s survivors. Even though sovereign immunity laws are in place to protect government agencies, lawmakers can pass individual bills to approve payments well over limits.

State sovereign-immunity laws place limits on the liability of government agencies. However, lawmakers can pass claim bills directing payments higher than those limits. Before the bill’s passage, Miami-Dade County had previously paid $300,000 to the estate.

Florida Senators voted 34-2 in favor of the bill. Sen. George Gainer, R-Panama City, and Sen. Keith Perry, R-Gainesville, opposed the bill.

About Kaire Heffernan, LLC

Kaire Heffernan, LLC is a personal injury law firm serving Miami-Dade County, FL, and surrounding areas. If you were negligently injured in an accident involving a government agency, discuss your case with a member of our legal team today. You can schedule your free, no-obligation consultation by calling 305-372-0123 or by sending us a quick note.

GOOD NEWS FOR FLORIDA DRIVERS (And Pedestrians & Cyclists) Texting While Driving Is Illegal

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Governor Ron DeSantis, signed a bill that became law on July 1st, 2019, which allows law enforcement officers to pull over drivers who are texting and driving. Texting while driving is now a primary offense. Here are some key things to know about the law.

What is the Law?

While driving, you cannot do anything that involves “manually typing or entering multiple letters, numbers, symbols or other characters into a wireless communication device or while sending or reading data on such a device, for the purpose of non-voice interpersonal communications”. According to the new law, this includes not only texting, but email message or anything that can be covered by that definition.

Can I use Other Apps?

Yes, you can still use Google Maps or other navigation apps. There are exceptions in the law which allow for vehicle navigation as well as data that is read by the vehicle, radio broadcast and safety related information, such as weather and safety alert.

Can I Talk On The Phone?

Yes, you can still talk on the phone, however as of October 1, 2019, it will be illegal to use a handheld device in a school zone or construction zone while workers are present. It will remain legal to us hands free technology such as Blue Tooth.

What is the Fine?

An initial offense will be $30.00 plus a point on your license that will increase to $60 and 3 points if you’re caught again within a five year period.

Is there a warning period?

There’s no defined warning period for the texting while driving law however police officers may issue voluntary warnings, that is up to their discretion. There is a warning period for the October 1st, ban on handheld devices in school zones and construction zones. This period will run from October 1, 2019 until December 31, 2019. During that timeframe, police must issue a warning, if they catch drivers talking in these zones. Police will begin issuing tickets for this violation on January 1, 2020.

Wasn’t Texting Already Illegal?

Yes, however it was classified as a secondary offense which means the police could only ticket a driver for texting while driving after pulling the driver over for a separate reason. Under the new law, it’s a primary offense, if the police officer sees you texting and driving, they have the right to pull you over.

Can they take my phone?

Absolutely not, the law specifically prohibits police who pull drivers over for texting from taking their phones. The law also prevents police from holding onto the drivers phone while waiting for a warrant. The law clearly states that consent for a police officer to search a phone must be “voluntary and unequivocal”.

What if I am at a Red Light?

Technically, you could text at a red light. The law states “a motor vehicle that is stationary is not being operated and it’s not subject to the prohibition”. Therefore, under the law, you could text while stopped at a light, however, if you attempt to finish that text as you begin to move, it is a violation of the law.

In today’s day and age, distracted driving, i.e., on the phone, texting, emailing, etc., is responsible for far more accidents than drunk driving. Hopefully as the enforcement of this new law takes place, people will begin to put down their phones while driving thereby making the roads safer for other motorists, as well as pedestrians and cyclists.

What You Tell Your Doctor Following An Accident Can Make Or Break Your Case

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In the world of Personal injury and medical malpractice, facts matter. A hidden word in thousands of pages of medical records can be a deciding factor. Words matter!!

A recent case from Florida’s 5th DCA, make it clear that information contained within medical records regarding how an accident happened is admissible. To the end, Cynthia Underwood was injured on July 11, 2010 when the motorcycle she was driving collided with a sport utility vehicle driven by Katherine Strong.

Mrs. Underwood sued Ms. Strong, alleging that Ms. Strong had negligently operated her vehicle, thereby causing the collision and severely injuring Mrs. Underwood. The case proceeded to trial solely on the issue of liability. The jury found Ms. Strong fifty percent at fault.

Ms. Strong appealed and argued that the trial court erred in refusing to admit a medical record containing a statement made by Mrs. Underwood to her treating physician concerning how the accident occurred. The 5th DCA agreed with Ms. Strong and remanded for a new trial on liability. Strong v. Underwood, 44 Fla. L. Weekly D1598c(Fla. 5th DCA 2019).

The issue at trial was liability for the accident, with each party alleging the other crossed the center line and caused the accident. It is obvious the jury did not know who to believe and thus split liability 50/50. At trial, Ms. Strong sought to admit a medical record from one of Mrs. Underwood’s treating physicians, Dr. Michael Cheatham. During a deposition, Dr. Cheatham testified that according to his medical record, he examined Mrs. Underwood the day after the accident. At that time, he recorded the following entry in the medical record:

Ms. Underwood is a 44-year-old white female who was the helmeted rider of a motorcycle that was involved in a crash yesterday. She states that one of the tires on her motorcycle blew, and she collided head-on with the SUV at an unknown rate of speed.

Dr. Cheatham testified that he would not normally write “ ‘she states’ unless a patient . . . verbalize[d] [the statement] to” him.

The trial court excluded the statement as inadmissible hearsay, finding the source of the statement was unknown. As a result, Dr. Cheatham did not testify at trial and neither the statement nor the medical record was introduced at trial.

Ms. Strong argued, and the 5th DCA agreed, that Mrs. Underwood’s statement should have been admissible as the admission of a party-opponent contained in a business record. She further argues the source of the statement was known because the medical record indicates the statement came from Mrs. Underwood.

Florida statute 90.803 sets forth exceptions to the Hearsay rule

Simply stated, medical records are admissible at trial. Likewise, a patient’s statements contained within medical records are admissible, provided the statements themselves fall under a separate hearsay exception. See, e.g., Otis Elevator Co. v. Youngerman, 636 So. 2d 166, 167 (Fla. 4th DCA 1994) (holding plaintiff’s statements in medical record admissible as statements made for purposes of medical diagnosis and treatment); Wilkinson v. Grover, 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (holding statement in medical record admissible as admission by party-opponent).

As the 5th DCA stated; “The statement at issue here indicated the accident occurred after one of the tires on Mrs. Underwood’s motorcycle blew, causing her to collide with Ms. Strong’s vehicle. Ms. Strong sought to use this statement against Mrs. Underwood at trial. Accordingly, as it was Mrs. Underwood’s statement and offered against her, it falls within the hearsay exception set forth at section 90.803(18)(a), Florida Statutes.”

90.803 Hearsay exceptions; availability of declarant immaterial.—The provision of s. 90.802to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

18) ADMISSIONS.—A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

The key portion from the ruling is the fact that the medical record itself states the source of the statement was Mrs. Underwood.

She states that one of the tires on her motorcycle blew . . . .”

Always speak with a lawyer as early on in the case as possible. In this case, a gratuitous statement that had no bearing on the injuries, treatment, or medical diagnosis had significant repercussions. Another important tool is to get the medical records as quickly as possible. We request and review medical records immediately. If we believe there is an error in the medical records, we can ask to doctor to review his records and draft an addendum. This is much easier to accomplish while the doctor may still have an independent recollection of the patient and the subject conversation.

Florida to Outlaw all forms of Distracted Driving?

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A bill unanimously approved by a state committee on Wednesday, March 6th 2019 may outlaw all forms of distracted driving such as holding a cell phone, applying makeup, reading, or any other activities deemed distracting. This bill was created in an attempt to lower the percentage of motor vehicle accidents on the road.

Senator Wilton Simpson made a statement referring to distracted driving as an epidemic in Florida, emphasizing that it is far beyond just car on car collisions. He goes on to explain that in comparison to the rest of the United States, the state of Florida has a record number of deaths in biking and jogging, almost all due to distracted driving.

Current state law deems texting and driving to be illegal, however, a driver can only be ticketed if they are first pulled over for something else. This new bill would make texting and driving, or driving in a distracted manner, a primary offensive. This meaning that someone could now be pulled over solely for their distracted driving.

Once in effect, law enforcement officers will also be recording the race and ethnicity of the ticketed drivers which they will then compile to an annual report to the governor; a provision that Senator Randolph Bracy requested in an attempt to avoid the distracted driving ban to be used for racial profiling.

Many parents who have tragically lost children from distracted driving or a distracted driver are large advocates of having this bill approved and are urging the committee to push it through, referring to the use of wireless devices as an addiction.

Thus far, this Senate Bill has been unanimously approved in the first two of four committee steps, and if enacted, Florida would ease into this new law by giving warnings for the first three months before ticketing.

Working with the lawyers at Kaire & Heffernan, you will not be charged for our services until and when we get you money. If you or a loved one have been in an accident caused by distracted driving, schedule a free consultation today.

Samantha Heffernan

Be Careful Where You Walk

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Walking is one of the most recommended forms of exercise.  Florida with its beautiful warm weather and sunshine might make you think that it would be the perfect place for walking however it’s one of the deadliest cities for people on foot.  Florida is home to nine of the twenty deadliest cities for pedestrians according to the 2019 “Dangerous By Design” report from Smart Growth America and the National Complete Streets Coalition.  Orlando is the number one least safe city for pedestrians and the Miami, Ft. Lauderdale/West Palm Beach metropolitan area isn’t far behind at no. 14.

What Does the Data Say About Florida Pedestrian Fatalities?

Disturbing data shows a 35.7% increase in the number of annual pedestrian deaths in the U.S. between 2008 and 2017.  During that ten (10) year period, nearly 50,000 pedestrians died, that’s averaging one pedestrian death nearly every two hours.

In contrast, traffic fatalities for motor vehicle accidents has decreased 6.1% between 2008 and 2017.  In the ten (10) year span there were 5,433 pedestrian deaths in Florida.  That’s an annual average of 2.73 pedestrian deaths per hundred thousand people.  This is significantly higher than the National figure of 1.5 average annual deaths per hundred thousand people.

Orlando is reported to have had 656 pedestrian deaths during that ten (10) year period.  The report creates a pedestrian danger index (PDI) and it calculates Florida’s PDI at 182.  This figure is staggering when compared to the National average which is 55.3 (PDI) and other large states like Texas, (111.9) or California (68.2).  The safest state for pedestrians is Vermont which comes with a PDI or 13.8.

Why There Are So Many Pedestrian Fatalities in Florida

According to the authors, the reason this is happening is that our streets were designed for moving vehicles and haven’t changed over the years.  The authors indicate that Federal and State transportation policies, blueprints and funding are stuck in the age of the automobile with large growth patterns, which led to wider roads that prioritized a high speed road for motor vehicles over the safety of pedestrians, bikes or other mass transit.

These pedestrian deaths are disproportionately higher for the elderly according to the data.

How Florida’s Government Can Protect Cyclists and Pedestrians

So as cities seek to reduce Americans dependency on cars, what needs to change to protect the pedestrians and cyclists?  Organizations like, Smart Growth America, and the Complete Streets Coalition advocate for the design of more livable developments and want to change the way roads are planned to make them more accommodating to all users and not only vehicles.

The Federal Highway Administration has eliminated some outdated car friendly regulations since 2016 which affords states and cities the ability to re-design streets with Federal funding.  The goal is to design safer streets, slower traffic, better intersections, sidewalks and bike lanes.  The Report urges for stronger regulations and suggests that the State Departments like FDOT set goals and targets to reduce pedestrian injuries and fatalities. The Report also suggests that these pedestrian fatalities stop being referred to as “unavoidable accidents” and should in fact be referred to as accidents or crashes.  It’s hopeful with these reports and recommendations for changes and guidelines that the number of pedestrian injuries and fatalities, particularly in the State of Florida, will decrease over the next decade as opposed to the rapid increase we have seen in the past decade.

In the meantime, be careful where you step and if you’re going to walk for exercise, it may be prudent to find parks, beaches and other areas in Florida which don’t have any vehicular traffic around.  Stay Safe!

 

 

David R. Heffernan

Driver’s Cellphone Examined After Crashing Into A Group Of Cyclist

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Nicole Vanderweit, was driving eastbound on SR 84 when she struck a group of 14 cyclists.  The riders were part of the Cycling Family Broward club. Rider Denise Marsh, 53, of Weston, a married mother of two, was vice president of the Cycling Family Broward. Sadly, Denise died about an hour after the 8:38 a.m. crash and two other riders were hospitalized.

The driver, Nicole Vanderweit claimed she was distracted by something in her car-but could not remember what.  Additionally, she said the sun was in her eyes and she could not see.  Vanderweit gave police her phone as well as permission to download crash data from her car.  Based on the physical damage to the bicycles and Vanderweit’s car, it is apparent she was traveling at a high rate of speed.  It would appear as if she never saw the group of 14 cyclists. Obviously, this would be consistent with someone who was “distracted” and yes,  probably  “distracted” by her cellphone.

When is An “Accident” not an “Accident”?  When you crash into a group of cyclists while driving at a high rate of speed, with sun in your eyes, and on your cellphone. If those are the facts, and they appear to be, then this was not an “Accident”.  It was Reckless behavior which could lead to criminal punishment and punitive damages.