Category Archives: General Information

New child safety seat regulations take effect in 2014 – are you ready?

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New child safety seat regulations take effect in 2014 – are you ready?

In early 2014, a new amendment to a law stating that the LATCH (Lower Anchors and Tethers for Children) Restraint System should not be used when the combined weight of the child and car seat is more than 65 pounds will go into effect. LATCH systems have been required in cars since 2001, and have been effective in preventing injury to children, but the strength of the anchors cannot be guaranteed when the 65-pound limit has been exceeded by the joint weight of the car seat and child.

LATCH-equipped vehicles have at least two sets of small bars, called anchors, located in the back seat where the seat cushions meet. LATCH-equipped Child Restraint Systems (CRSs) have a lower set of attachments that fasten to these vehicle lower anchors. Most forward-facing CRSs also have a top strap (upper tether) that attaches to a top or upper anchor in the vehicle. Together, they make up the LATCH system. LATCH was designed to make child seats safer and easier to install.

But usually weighing between 15 to 33 pounds, some child seats are heavy enough on their own to prevent children as light as 32 pounds from using the LATCH system. The American Academy of Pediatrics has recommended that until the age of 8, children should remain in harness (including 5 point harness or booster with seatbelt), prompting car seat manufacturers to begin developing child seats with higher weight limits.

The current anchor requirements have been criticized by Joseph Colella, one of the five child-safety advocates who petitioned the National Highway Traffic Safety Administration (NHTSA) to complete the rule change. He and other advocates have found that the lower anchor weight requirements are based on older model child seats and the recommendations of how long children should be in child seats are outdated.

Another advocate of amending the law was the Alliance of Automobile Manufacturers, which sought the rule change after studies found that weight limits did not take into account how much the child seats weigh.

However, usage and awareness of the LATCH system is already low. A study performed by Safe Kids Worldwide, an organization that has become an authority on unintentional childhood injury prevention, discovered that most people are using the lower anchors only around 30 percent of the time. The top tether straps, designed to prevent head injuries among children, were also only used in about 30 percent of vehicles.

“Disconnecting tethers when their use is needed … could lead to a tragedy,” Stephanie Tombrello of advocacy group SafetyBeltSafe told USA Today.

To ensure you are meeting current guidelines with child seat regulations, first weigh your child, then weigh the child safety seat, then add the two weights together. If the weight of the child and child seat together exceeds 65 pounds, start using a seat belt restraint instead of the LATCH system until you find an updated child seat supporting the combined weight.

“While LATCH makes it easier to properly install car seats in vehicles, it’s important for parents and caregivers to know that securing a child seat with a seat belt is equally as safe — and that they have the flexibility to use either system,” says Transportation Department spokeswoman Lynda Tran.

The NHTSA reports child safety seats, or child restraint systems (CRS) are the most effective way to protect babies and young children in the event of an automobile accident. Statistics show that when child safety seats are properly installed and used, they reduce the chance of serious injury or death in a vehicle crash by as much as 71 percent. But these restraints cannot work if they are not installed properly. Sadly, three out of every four child restraints are not properly used.

Every year, thousands of children are tragically injured or killed in automobile crashes. For children ages 3-6, and 8-14, it is the leading cause of death. It is impossible to overstate the toll this takes on families. All 50 states and the District of Columbia and our territories have laws requiring the use of safety seats, booster seats and seat belts for children traveling in motor vehicles.

Sources:
Babble
USA Today
NHTSA

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

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Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs in this action were deserving of an adverse inference and monetary sanctions for gross negligence for willfully destroying evidence and failing to issue an adequate litigation hold.

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U.S. District Judge Shira A. Scheindlin

The 32-page ruling by the influential jurist presents a forceful rejection of trends from some courts that required prejudice to be demonstrated in order to impose severe sanctions. In reversing U.S. Magistrate Frank Maas’s June opinion in Sekisui, Judge Scheindlin deemed the facts in this case neither required bad faith nor prejudice for an adverse inference.

Judge Scheindlin references Residential Funding as the controlling law in the Second Circuit on adverse inference instructions (Footnote 47) which requires a three-part test including: 1) an obligation to preserve, 2) culpable state of mind, and 3) relevance of the spoliated evidence. To the first point, the facts of the case show that the plaintiff Sekisui failed to preserve information by failing to issue a litigation hold for 15 months and further failing to instruct a third-party vendor to preserve key custodian emails a further 6 months after that which “constitutes gross negligence in these circumstances.” (p.23) Moreover, the court found that evidence was “willfully destroyed.” (p.20)

Regarding a culpable state of mind, the court found that gross negligence “satisfies the culpability requirement (p.15 citing Chin v. Port Authority). On the topic of relevance, the court states that “[w]hen evidence is destroyed willfully, the destruction alone ‘is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavorable to that party.’” (p.16 citing Residential Funding) Judge Scheindlin went on to say that “when evidence is destroyed willfully or through gross negligence” that “prejudice is presumed.” (p.18)

Judge Scheindlin’s reversal sums up the court’s findings:

“Because I find it clearly erroneous and contrary to law, the Memorandum Decision is reversed insofar as it refused to impose sanctions on Sekisui for the destruction of ESI. As discussed, Sekisui (1) willfully and permanently destroyed the ESI of at least two key players in this litigation; (2) failed to impose a litigation hold for more than a year after the duty to preserve arose, despite the fact that Sekisui is the Plaintiff in this action and, as such, irrefutably knew that litigation could arise; and (3) failed to advise its IT vendor of such litigation hold for nearly six months after (belatedly) imposing such hold. Accordingly, the Harts’ request for an adverse inference jury instruction is granted.” (p.28)

Now, let’s turn to Footnote 51 in Judge Scheindlin’s Sekisui opinion. It’s more than a mere citation but rather a definitive statement of her opposition to the proposed amendment to Rule 37(e) which would limit sanctions in cases of spoliation. Here is what she had to say:

I do not agree that the burden to prove prejudice from missing evidence lost as a result of willful or intentional misconduct should fall on the innocent party. Furthermore, imposing sanctions only where evidence is destroyed willfully or in bad faith creates perverse incentives and encourages sloppy behavior. Under the proposed rule, parties who destroy evidence cannot be sanctioned (although they can be subject to “remedial curative measures”) even if they were negligent, grossly negligent, or reckless in doing so. In any event, the proposed rule has not been adopted.

Judge Scheindlin once again has asserted her authority as one of the most influential voices from the bench in Sekisui by reversing the magistrate’s previous order and citing the Second Circuit’s current controlling law in supporting her third adverse inference sanction for spoliation. It will be interesting to see how this latest salvo from the Southern District of New York influences the courts there and in other parts of the country.

Further Reading

The Bubble Bum booster seat meets government standards. So what?

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The Bubble Bum, an inflatable child booster seat, advertises that it “meets
all US safety testing standards” – and so does a three-ring binder filled
with paper and wrapped with duct tape.   But does that mean that
these designs will actually protect a child in a crash? Federal Motor Vehicle
Safety Standard 213 hardly represents the state of the art in child safety seat
research, testing or technology. An inflatable child seat might be convenient,
but successful compliance testing can mean very little in a real-world crash. Gary
Whitman, Director of Crashworthiness for the Philadelphia-based ARCCA Inc.,
an expert in occupant crash safety systems, will talk at The Safety Institute’s
upcoming conference about 213’s relevance to safety and public health – and
what’s needed to make the standard more relevant.  Whitman has tested
hundreds of child seats and collaborated with NHTSA, the Pennsylvania chapter
of the American Academy of Pediatric Child Injury Prevention, National SAFE
KIDS Campaign, and the Children’s Hospital of Pennsylvania in child restraint
research. (The Safety Institute).

http://www.thesafetyinstitute.org/

 

 

 

 

 

New Jersey court: Texting with a driver can get you in trouble, too

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By Matt Pearce(L.A.Times) August 29, 2013, 2:59 p.m.

Can you be held responsible for an accident that happens miles away because you texted the driver?

A New Jersey appeals court panel says yes — and its recent ruling is notable not just for trying to crack down on texting and driving, but for interpreting the way that technology has reshaped life.

On Sept. 21, 2009, Kyle Best, 18, crashed his pickup truck into a married couple riding a motorcycle after Best’s truck crossed the center line on a curve. Best had been texting with an acquaintance. David and Linda Kubert both lost their left legs in the accident.

The Kuberts settled with Best after filing suit, but also sued Best’s acquaintance, Shannon Colonna, arguing that she was “electronically present” in Best’s truck by texting him, and was thus partially responsible for distracting him on the road. A lower court dismissed that claim, citing lack of evidence, and the Kuberts filed an appeal.

In a specific sense, Colonna won: The three-judge panel from the Superior Court of New Jersey’s appellate division unanimously agreed Tuesday that there was insufficient evidence to determine whether Colonna was responsible for distracting Best.

But for the rest of New Jersey’s texters, the court lay down a new standard of responsibility: two of the judges, with a third dissenting in part in a concurring opinion, said that texters could be held responsible in civil court for distracting a driver, provided they had a good reason to believe that the driver would actually respond.

The court’s language says “when the sender ‘has actual knowledge or special reason to know’ … from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.”

The court then makes a unique philosophical turn in addressing how technology users interact with reality, by arguing that when a “sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle.”

The judges cited an interesting hypothetical: “A is driving through heavy traffic. B, a passenger in the back seat, suddenly and unnecessarily calls out to A, diverting his attention, thus causing him to run into the car of C. B is negligent toward C.”

In other words, texting someone can sometimes be the same as actually being with them. The implication of this point is a bit larger: The physical world doesn’t exist separately from cyberspace; technology and life often overlap, sometimes with lethal consequences.

“I think the court is right to define ‘presence’ as not only rooted in physical space, but also by attention — something digital communication can garner a substantial amount of, even over great distance,” said Nathan Jurgenson, a digital theorist who has written about these issues.

However, Jurgenson added, “The decision to pick up the phone is ultimately the driver’s.”

The court ultimately agreed, holding that texters weren’t negligent simply by texting a driver — only if they knew there was a likelihood the driver would respond while driving.

In a concurring opinion, Judge Marianne Espinosa nonetheless critiqued the philosophical move of equating a texter with being an unruly passenger in a car.

“A person who is not present in the automobile lacks the firsthand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver,” Espinosa wrote. Nonetheless, she added that the other judges’ analysis was “helpful.”

Using a non-hands-free cellphone while driving is mostly illegal under New Jersey state law. After the accident, the state legislature also passed a law that an injury accident stemming from phone use can lead to fourth-degree assault charges and possible prison time.

Under New Jersey law, the plaintiff must prove liability for causing negligence.

According to federal statistics, 3,331 people were killed in crashes involving a distracted driver in 2011, with another 387,000 people hurt. 10% of injury crashes were thought to involve distracted drivers.

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