New York Legal Blog

Why Are There 57 Million Recalled Vehicles Still on Our Roads … Unrepaired?

It’s hard to believe it, but in this era of the vehicle recall, there are over 57 million U.S. automobiles on our roads that have been recalled for at least one defect, according to this year’s study on the matter by Carfax. The owners of these defective vehicle owners, for whatever reason, have not had them fixed. The repair is free and usually done in a couple of hours. Go figure. The latest Carfax numbers also tell us that New York, California, Texas, Florida, and Pennsylvania have the most vehicles with open recalls. The massive recall of airbag inflators made by Takata, for example, is well known. But according to the National Highway Traffic Safety Administration (NHTSA), nearly 60,000 people still drive around with deadly airbags, oblivious to the efforts of automakers and the NHTSA to hook them up with dealerships which are anxious to replace the defective devices. In some areas, dealerships are even calling and knocking on people’s doors – literally – trying to get them to bring their vehicles in. Why are So Many Cars Still Unrepaired? Carfax’s data suggests that busy Americans’ work/life balance may be one reason that some vehicle owners don’t know about a recall, or don’t get it promptly fixed. Light trucks and minivans – vehicles often used by businesses and busy families – are most likely to have unfixed recalls. Another reason is that when older vehicles are targeted for recalls, the repair rate tends to be lower, partly because it can be harder to contact owners. The older the vehicle, the more likely that it has been sold – usually more than once — so mailed recall notices fail to reach the current owner. This brings to mind another problem when it comes to used cars with unresolved recalls. Federal law prohibits the sale of a new car if it has been recalled. But there are no state or federal laws requiring a dealer to fix a recalled used car before selling it. New York City is the only major municipality in the U.S. which requires used car dealers to even alert buyers to recalls! A dozen groups – including Consumers Union and the Consumers Federation of America – are now petitioning the FTC to require dealers to at least inform buyers of unrepaired recalled vehicles. It’s unlikely that Capitol Hill will mount any real initiatives to address the used car recall question anytime soon. Is There an Open Recall on Your Vehicle? It could be worse, though.  Last year, Carfax reported 63 million active vehicles with open safety recalls – or one in four vehicles on the road in 2016. This year’s count – 57 million – finds that percentage down to about one in every five vehicles with an open recall. If keeping up with defective GM ignition... read more

Preventing Falls in Construction

The National Institute for Occupational Safety and Health (NIOSH), the federal Occupational Safety and Health Administration (OSHA) and the Center for Construction Research and Training (CPWR), along with the National Safety Council and other similar NGOs, are among the entities encouraging construction employers to stop work to discuss fall hazards and prevention with their workers during the fifth annual National Safety Stand-Down to Prevent Falls in Construction, the week of May 7. Falls are the leading cause of death among construction workers, according to NIOSH; and account for fully one-third of construction industry fatalities. S­ince the campaign began, according to OSHA, millions of construction workers have participated in stand-downs. Individual events have taken place in all 50 states and internationally. Last year (2017) virtually half (49 percent) of U.S. companies which held these stand-down events were small construction firms with less than 25 employees. A new CPWR cumulative database encompassing the years 1982-2015 revealed that falls accounted for nearly half (42 percent) of all construction worker deaths, and more than half of the workers killed in a fall did not have fall protection safety equipment. Other information found in the CPWR study showed that: One-third of all fatal falls were from 30 feet or higher. 20 percent of all recorded fall-related deaths occurred to victims who had been on the job for two months or less. The Meaning Behind Fatal Fall Statistics OSHA regulations require employers to provide appropriate safety equipment and other necessary materials to prevent accidental falls. A general industry standard is to provide fall protection equipment (harnesses/lanyards, etc.) every four feet of elevation. In shipyards, fall protection must be provided at five-foot elevations. On construction sites, the minimum required distance between fall protection elevations is six feet; and yet, in some cases, fall protection on scaffolding has minimum distances of 10 feet, a shortcoming that all of the above government agencies and NGOs are working to remedy. In addition to providing safety equipment to their workers, contractors and other construction employers are also required to guard holes in the floor to protect workers from inadvertently walking into or falling through them.  Preventative measures include installing railings, floor hole covers, or toe-boards. Guardrails and toe-boards must also be installed around runways, elevated open-sided platforms, elevated floors, and dangerous machines or equipment. Contractors must also keep floors clean and dry, train workers about job hazards in languages they understand, and provide personal fall protection equipment at no cost to workers. However, it’s a commonly known fact that when initially estimating the cost of a job, some employers fail to fully account for all hazards, including holes and edges. Some also fail to include adequate fall protection in their budgets. Sometimes workers are not adequately trained in using protective equipment, and it’s these workers who don’t understand the appropriate... read more

Showing Bikers Respect on Our Roads

The National Safety Council has designated May as National Motorcycle Safety Month.  And though its goal is – in-part – an effort to encourage motorists to be more aware of motorcyclists and to drive with their safely in mind, we’re going to take a few moments to again remind bikers how to avoid crashes with larger vehicles. On a per-capita basis, motorcycle accidents occur 27 times more frequently than other vehicle accidents, and bikers are six times more likely to be injured, according to the National Highway Traffic Safety Administration (NHTSA). NHTSA also tells us that 5,286 motorcyclist accident fatalities occurred in 2016. Of that number, 4,603 riders of traditional “street bikes” and 319 of their passengers were killed on roads and highways in the U.S. (total 4,922). You motorcycle riders know riding is so much fun. But you also know it can be dangerous. It takes balance, coordination, good judgment and total awareness of your surroundings. So we’re sharing some ways to raise the odds that you’ll be around to enjoy riding for many years to come. Learn How to Ride your Bike and be Properly Licensed Riding a motorcycle requires different skills and knowledge than driving a car. New York State residents must have a Class M or Class MJ license or a learner’s permit to ride a motorcycle on the street. You must complete a DMV-approved pre-licensing course with your motorcycle learner’s permit, before getting your Class M license. Completing a motorcycle rider education course is a good way to ensure you have the correct instruction and experience it takes to ride a motorcycle. To find a motorcycle rider training course nearest you, contact the New York Department of Motor Vehicles or the Motorcycle Safety Foundation at (800) 446-9227. Become Familiar with your Motorcycle Take time to get acquainted to the “feel” of a new or unfamiliar motorcycle by riding it in a controlled area. Once accomplished, cautiously ride it in traffic: less-congested streets at first, NOT the LIE or the Van Wyck at 60 mph.  Get comfortable handling your bike in all conditions: inclement weather, slick roads, potholes, and encountering road debris. Familiarize yourself with carrying a passenger; but only after completely comfortable with your motorbike. Proper Protection First – New York State has a “helmet law.” Meaning all riders and passengers must wear an approved safety helmet. Even if you don’t like them, helmets save lives! You would be smart to have one with a plastic face shield to protect you from wind, rain, insects, dust, and stones thrown up from cars. If not, a durable pair of goggles will do nicely. Arms and legs should be completely covered with leather or heavy denim. Boots or shoes should be high enough to cover your ankles, and gloves offer better grip and protect your hands... read more

There Are Far Too Many Bad Drivers on New York Roads

A mid-March school zone speeding accident in Brooklyn, in which two pedestrian children were killed and their pregnant mother injured, has renewed public outcry for a crackdown on traffic violators throughout NYC.  On the other hand, a recent Wall Street Journal analysis of vehicle traffic violation data in the city amplifies the challenges faced by law enforcement to prevent even the most outrageous offenders from racking-up violations, proving that such crackdowns have little effect. City records of automated red-light and speed-zone camera violations reveal that the license plate of the car involved in that deadly crash had four citations for running red lights and another four for speeding in school zones between July 2016 and two weeks before the fatal Brooklyn crash. City-wide during that same 19-month period, more than 19,000 license plates on passenger vehicles had at least eight moving violations for offenses such as running red lights, speeding in school zones, or both; and 36 license plates were issued 40 or more red-light and school-zone speeding violations. One passenger car with a New York plate returned a whopping 65 violations for speeding in a school zone. A New Jersey license plate had 28 red-light citations in the audit. Why are these initiatives at greater vehicle safety having little effect?  State law is essentially toothless, because it actually makes it possible for serial violators to avoid punishment. Driving violations caught on a camera are tied to a vehicle, not to the driver. Also, one fine for camera tickets – assuming it is paid – is $50. And because it’s a violation caught on camera – the city doesn’t report the violation – or payment – to the state’s Department of Motor Vehicles. This means no penalty points go on the driver’s record, and that means the driver won’t lose their license for repeated violations. The city can – and does – report unpaid tickets to the DMV. The state can suspend a vehicle registration for three unpaid red-light or speed-camera violations within an 18-month period; but the suspension stems from the failure to pay the violation, not the violations themselves. The only time drivers are issued “real” tickets is when police stop the violator. Those convictions can appear on a driver’s record and result in penalty points on their license, hundreds (or sometimes thousands) of dollars in fines and surcharges and, most certainly, dramatic increases in their insurance rates. If the driver in the Brooklyn school-zone accident had had actual convictions for any of her previous school zone speeding tickets, her license could have been revoked. Sadly, it wasn’t. What are the Options for Change? New York Police Department Deputy Commissioner for Legal Matters Lawrence Byrne said in a recent news conference that vehicle forfeiture is one penalty that the State Legislature might consider making a state law... read more

Recalls Fell Last Year, but Are Vehicles Safer?

U.S. motor vehicle recalls fell to 30.7 million in 2017. That’s the fewest since 2013, according to the National Highway Traffic Safety Administration (NHTSA). It follows a record number (53 million) in 2016, owed largely to an expansion of the Takata airbag inflator recalls and ongoing ignition switch recall of General Motors (GM) vehicles – the latter linked to 124 deaths so far. Since the beginning of the Trump administration, NHTSA has not imposed any new vehicle safety fines and the agency remains without a permanent head. That’s one of many reasons why owners need to better know about specific vehicle recalls. It would be a mistake for you to assume that because your car is several years old, or you responded to a recall a few years back, there may not be others associated with your vehicle. In December 2017, Fiat Chrysler issued a recall which covers faulty gear shifters in more than a million Dodge Ram trucks, dating back to their 2009 models. What else is out there? It’s easy to keep track by logging onto the Consumer Reports Car Recall Tracker. Enter your car’s make and model and you’ll get a list of recalls, along with information on how to get the problems fixed. All repair work associated with safety-related recalls is usually offered free of charge at authorized dealerships. Does NHTSA Protect Consumers or Promote Automakers? The federal agency which was established as a protector of America’s drivers and auto buyers has a well-documented record of missteps that goes well beyond its failure to identify defects in cars and trucks bought by consumers. Even as more cars were recalled for safety problems before 2017, the National Highway Traffic Safety Administration was awarding yearly increases in certain vehicles’ safety ratings. Fully two-thirds of 2015 models tested by NHTSA received top safety ratings. According to an investigation by the New York Times, the safety “winner” information was then embraced and promoted by the proud automakers’ marketing teams.  But wait, there’s more. Who Do You Trust? There is also a history at the NHTSA of the “blurring of lines” between government regulators and the companies they are charged to monitor and control.  Several years ago, USA Today ran an exposé which contained some unsettling revelations. From 1984 to 2010, the Department of Transportation inspector general revealed that 40 NHTSA officials left the safety agency to take highly-placed jobs with automakers and their law firms or as auto industry consultants or lobbyists. The group included four administrators, two deputy administrators, seven associate administrators and two chief counsels. And from 1999 to 2010, 23 auto industry executives moved into equally influential government transportation agency jobs. The climax to this dual migration came in 2014 when NHTSA’s top safety administrator, David Strickland, a key author of strong auto mileage and emission... read more

What a Major Setback for Uber Means for Road Safety

A self-driving Uber SUV struck and killed a pedestrian on a street in Tempe, Arizona, in late March. This was the first known U.S. fatality involving a pedestrian and a fully autonomous car, and the incident has spurred discussion about whether or not tests of self-driving vehicles should continue — and, if so, how aggressively. The self-driving Volvo XC90 SUV killed a 49-year-old woman as she walked her bicycle across a street, according to the Tempe Police Department. Preliminary information reveals the car was going approximately 40 mph in a 35 mph zone. There was a test driver at the wheel but the car was in autonomous mode at the time of the crash. There is no indication that the driver was impaired when police arrived at the accident scene. In 2017, Uber briefly pulled its self-driving vehicles from roads after a test vehicle landed on its side, also in Tempe. The National Transportation Safety Board (NTSB) is conducting an investigation. Why two accidents in Arizona? The state doesn’t have as much inclement weather – particularly rain or snow – as the rest of the U.S. This makes it a practical location to test self-driving cars at this point in their development. Many companies have targeted 2020 as their hoped-for date when self-driving vehicle technology could be the dawning of a renaissance on America’s roads. Whether developers can keep to that optimistic schedule remains to be seen. Problems with Tesla Self-Driving Vehicles? Since autonomous vehicles began street testing, motorcyclists and bicyclists have expressed their concerns about self-driving cars. For the most part, their concerns have fallen on deaf ears within the industry, the news media, and government. Fred Heppell, an avid British cyclist who had participated in bike tours all over the world, was reportedly riding on a straight country road in good weather with excellent visibility in November 2017 when a Tesla Model S 90D struck him from behind. The accident killed the 80-year-old Heppell and raised concerns among international road riders about whether the Tesla had been in “autopilot” mode at the time. Neither the police nor Tesla has publicly commented on that question. So far, the case has received little attention from the news media in Great Britain and virtually none in the United States. If it turns out the Tesla vehicle was on autopilot, it could further impact testing in the U.S. and other countries. The autonomous vehicle industry, a loose configuration of traditional auto companies and tech start-ups, is aggressively selling the promise of rational, computer-controlled vehicles, free from road rage or driver error. But they have been woefully short on specifics about how they can ensure the safety of those with whom autonomous vehicles will share the road, according to cycling and consumer advocates in general. The League of American Bicyclists has been... read more

Conor McGregor Storms Barclays Center, Opening Questions of Negligent Security

Theatrics are common in UFC media events. Pushing, insulting and hurling water bottles are simply part of the hype one can expect in the build-up to a high-profile mixed martial art bout. But when Conor McGregor and several of his associates charged into the Barclays Center on Thursday night, it was anything but your run-of-the-mill fight promotion. McGregor and his team threw hand dollies and trash cans at a passenger bus, injuring at least two fighters scheduled for bouts at UFC 223. McGregor was supposedly responding to a perceived threat against his friend and ally, Atrem Lobov, in an ongoing feud between McGregor’s camp and the camp of Khabib Nurmagomedov, a Russian fighter scheduled on the main card on Saturday night to determine the heir to McGregor’s lightweight champion status. Because of the incident, Michael Chiesa and Ray Borg were injured and deemed unfit to fight. It isn’t clear whether others might have suffered injuries as well, but UFC president Dana White said that a UFC employee’s knuckles were broken in the scuffle, and he hinted at the possibility of other injuries. Who Could Be Held Responsible for Injuries in this Case? How McGregor and his crew got into the building is a major issue, and it could have implications for potential civil litigation cases. UFC president Dana White said he was informed by the police that members of the Mac Life, a media company that promotes McGregor, let the Irish mixed martial artist and his team into the building. White also said that they should be arrested for doing so. If the Mac Life team is responsible for facilitating his entrance into Brooklyn’s Barclays Center, then they might also bear liability if civil litigation is pursued by the injured parties. Yet another liable party could be the Barclays Center. To understand why the sporting venue could be partially responsible for injuries that occurred on the property, it’s worth taking a second to understand premises liability and negligent security cases. Property owners and managers have a responsibility to keep their premises safe. If someone suffers an injury because of unsafe property conditions or, relevant to the McGregor case, because of lax security, the owners/managers might bear legal responsibility for the costs of injuries suffered as a result. Obviously, McGregor, too, could be held liable in a personal injury lawsuit, because he was directly responsible for the incident. What Could Be at Stake in Civil Litigation? In cases of personal injury, premises liability and negligent security, there are always injuries and associated costs at the heart of litigation. Injuries are expensive. Money is required to pay for medical tests and treatment. Expenses vary, depending on the severity of the injury and the duration and extent of required care. In the case of the injured fighters, however, the injuries also carry... read more

April Is Distracted Driving Awareness Month

Several years ago, the National Safety Council (NSC) designated April as Distracted Driving Awareness Month. It is now a united effort by many agencies and other non-governmental organizations (NGOs) to eliminate preventable deaths from distracted driving. Researchers and law enforcement officials seem to agree that using smartphones – especially for texting – is the primary cause of distracted driving accidents. But in-vehicle infotainment systems are also prominent distracting agents. Add to that the traditional eating behind the wheel, applying makeup, griping at the kids misbehaving in the back seat, and getting lost in conversation with other passengers, and there are too many things to draw our attention from safely operating our motor vehicles. But It’s Texting While Driving That Injures and Kills Most of Us The NSC says around one out of every four accidents in the United States is caused by texting and driving. Texting while driving is six times more likely to cause an accident than driving drunk, according to the Council. Distracted driving of only five seconds is enough time to travel the length of a football field at 55 miles an hour…while DRIVING BLIND. 94 percent of drivers support a ban on texting while driving, and 74 percent of adult drivers support a ban on ANY hand-held cell phone use Yet many drivers obviously still use their smartphones. Don’t you find that ironic? Since 2005, almost every state has passed some form of a ban on texting while driving. There are four types: Primary enforcement on ALL drivers Secondary enforcement on ALL drivers Primary enforcement on young drivers and secondary enforcement on all other drivers Primary enforcement ONLY on young drivers. Under primary enforcement, police officers can stop a vehicle if they observe the driver texting and driving. Secondary enforcement means a driver can be charged with texting and driving only if police stop the vehicle for some other suspected offense. A 2013-14 study by the University of Alabama at Birmingham School of Public Health examined the impact of these various texting bans on motor vehicle fatalities from 2000-2010. Published by the American Journal of Public Health, UAB researchers found that states with primary enforcement laws – where police can pull over a driver for texting and driving as the sole cause – saw a three-percent drop in traffic fatalities across all age groups, an average of 19 fewer deaths each year. Texting bans against only young drivers aged 15-21 experienced the greatest reduction in fatalities – 11 percent. According to the AAA Foundation for Traffic Safety, more than half of teen drivers use a cell phone while driving, and almost one in three admit to typing or sending a text message while driving during the month before they were surveyed. Technology Answers Help (Somewhat) In the past few years, a variety of tech innovations have been... read more

Sleep Apnea Screening Could Prevent Transportation Accidents

Disturbing patterns of sleep deprivation and its impact on transportation workers are emerging in recent news headlines. Two New York-area commuter rail crashes which occurred in 2016 and early 2017 were caused by fatigued engineers who suffered from an undiagnosed form of severe sleep apnea, federal safety officials recently disclosed at the close of their investigations. The National Transportation Safety Board (NTSB) emphasized a lack of adequate screening for the sleep disorder as the probable cause for the two serious wrecks: one late-September crash at a Hoboken, New Jersey Commuter Terminal, killing one and injuring 110; and the January 2017 Long Island Railroad train crash at Brooklyn’s Atlantic Terminal, which injured more than 100 people. The NTSB reaffirmed its ongoing call for the Federal Railroad Administration (FRA) to make sleep apnea testing mandatory. If both railroads had effectual sleep apnea testing programs, the NTSB report said, “it would have been unlikely that these employees would have been operating trains with undiagnosed and untreated obstructive sleep apnea.” After embracing such programs during the Obama Administration, the FRA last August turned its back on programs that would have required railroad engineers to be tested for sleep apnea, which has been irrefutably proven to cause people to fall asleep on the job. Advocates of the testing, including the NTSB and Federal Motor Carrier Safety Administration (FMCSA), denounced the decision, citing President Trump’s effort to aggressively reduce regulations at all levels of federal government. The American Academy of Sleep Medicine (AASM) continues to urge the Trump Administration to reverse its decision and recommends that both FRA and FMCSA take alternative steps to improve sleep apnea screening of at least engineers and over-the-road truck drivers. NTSB Chairman Robert L. Sumwalt said in a statement accompanying their investigation of the two train accidents, “The traveling public deserves alert operators. It is not too much to ask.” It is estimated that more than 25 million Americans suffer from undiagnosed sleep apnea. The condition results in the reduction or cessation of breathing during sleep and disturbs restful sleep, which in turn contributes to fatigue in people during waking and what should be productive work hours. The NTSB says sleep apnea has been the probable cause of at least 10 highway and rail crashes in the past 17 years. Privately, many NTSB investigators say that number is an “extremely low estimate.” FRA has been aware of sleep apnea’s dangers on railroads since at least 2004. That’s when it issued a safety advisory about sleep disorders. But that didn’t stop the FRA from marching in lockstep with the president’s mandate to eliminate as many federal regulations as possible without considering their impact on our safety. NJTransit had a sleep apnea screening program on the day of the Hoboken crash. But the engineer’s most recent apnea screening was from 2013. And even... read more

Deathly Falls Continue to Plague Construction Workers

After recently creating a unique database from numbers provided by the CDC’s NIOSH Fatality Assessment and Control Evaluation program (FACE), researchers with the Center for Construction Research and Training (CPWR) discovered that, over a 33-year period, falls accounted for nearly half of all construction worker deaths. And of that number, over half happened because workers were not using fall-protection equipment. Reports for 768 construction industry fatalities between 1982 and 2015 revealed that: 42 percent (325) of all construction fatalities involved falls. 54 percent of the workers killed in falls had no access to a personal fall arrest system (PFAS), and 23 percent had access to a PFAS but did not use it. Most of the workers with no access to PFAS worked for residential building, roofing, siding, and sheet metal contractors. 107 of the 325 fatal falls were from 30 feet or higher. 20 percent of fall deaths occurred in the victims’ first two months on the job. “Even though this study was unable to assess effectiveness of OSHA [Occupational Health and Safety Administration] fall protection standards established in 1995, a considerable number of fall fatalities from lower heights provides strong evidence of the need for the OSHA requirement that fall protection be provided at elevations of 6 feet or more in the construction industry,” researchers said. In the study’s abstract, the researchers say their new database enabled them to analyze FACE reports “quantitatively and efficiently, to improve understanding of work-related fatalities injury prevention.” To prevent employees from being injured from falls, the CPWR encourages the following guidelines and practices: Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover). Provide a guard rail and toe-board around every elevated open-sided platform, floor or runway. Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent worker falls. Other means of fall protection including safety harness and line, safety nets, stair railings and hand rails where appropriate. OSHA also requires employers to: Provide danger-free working conditions wherever possible. Keep floors in work areas clean and, as far as possible, dry. Select and provide required personal protective equipment free to workers. Train workers about job hazards in a language they can understand. Furthermore, the CPWR recommends the following: When estimating the cost of a job, employers should include provisions for purchase of specific safety equipment for the work performed and have it be available at the construction site. An example for a roofing job: think about all of the different fall hazards, such as holes or skylights and leading edges, then plan and select appropriate fall protection, such as personal fall arrest systems (PFAS). Employers should also secure... read more

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