Motorcyclist gets justice for unsafe road

50 yr old Todd Moothart was a software engineer who loved to ride his Harley on nice days. The State of WA failed to maintain the transition from the road to the shoulder, causing Todd's tragic crash.

Todd Moothart, a 50 yr old software engineer, loved to ride his Harley on nice days. Washington State failed to maintain the pavement edge/transition from the road to the shoulder, causing Todd’s tragic crash.

The purpose of a road shoulder is to provide a safe place for drivers to pull off. This is what Todd Moothart, a 50 year old software engineer, thought as he tried to pull his motorcycle out of traffic. A conscientious motorcyclist, he wanted to wait for his friends to catch up. Motorcyclists know that it’s safer to travel in groups on the highway to increase their visibility to other vehicles.

When Todd got separated from his two friends on a beautiful Saturday afternoon in Fall 2013, he decided to pull off on SR 14 and wait for them. But the road shoulder was far from safe. The broken pavement past the edge of the main road–next to the shoulder–dropped off seven inches.

Broken pavement edge where Todd Moothart pulled off was 7"-- 5" greater than the State's own maximum 2" for a drop-off.

Broken pavement edge where Todd Moothart pulled off was 7″– 5″ greater than the State’s own maximum 2″ for a drop-off.

When Todd pulled his Harley Davidson onto the shoulder, his motorcycle wheel hit the face of the seven-inch broken pavement edge. His motorcycle hit the face of the broken pavement, his front and rear wheels were severely dented, and his body was propelled into the air like he was on a trampoline.

Note that safety standards in the transportation engineering field recommend that pavement edge drop offs be kept to a depth of no greater than two

Broken pavement edge that caused Todd's tragic motorcycle crash.

Broken pavement edge that caused Todd’s tragic motorcycle crash.

inches.

Todd suffered severe injuries, including a kidney laceration, a concussion, amputation of a part of his right index finger, and broken/fractured bones in his upper and lower body.

 

The design plans for the on-ramp called for an eight-foot paved shoulder on the right-hand side.  At the location where Moothart pulled off, there was no paved shoulder at all beyond the fog line.  For unknown reasons, the State’s as-built plans for the on-ramp showed an eight-foot paved shoulder, but the evidence indicated that the on-ramp never had an eight-foot paved shoulder in the area where Moothart pulled off.  The on-ramp was built in the mid-90s.

Stritmatter Kessler attorneys represented Todd Moothart in trial against the State of Washington in late October/early November of this year. The jury found that the State had failed to maintain the road in a reasonably safe condition.Todd was awarded $2,993,000. Part of the award was for about $500,000 in undisputed past medical bills and wage loss.

Todd was a conscientious motorcyclist who was at the wrong place at the wrong time. Emergencies and split second decisions happen anywhere and anytime. That’s why the shoulder must be maintained per State of Washington standards. The shoulder needs to be safe to pull over for all vehicles. This is the State of Washington has standards for an eight food shoulder with a minimum drop off of 2 inches.

Kudos to our firm’s roadway safety attorneys for educating the jury and judge about the need to keep the State’s road shoulders safe! The government needs to be held accountable, when its roads don’t meet basic safety requirements.

 

Attention Seattle Drivers: New, lower speed limits in effect!

sdot-lowers-arterial-speed-limitHopefully making the most out of the extra hour yesterday, transportation workers were busy at work around Seattle yesterday. Why? They were installing 145 signs announcing the new 25 mph arterial-speed limit. The policy behind lowering the arterial speed limit is to reduce traffic related injuries and fatalities.

So…. take note:

The residential speed limit of 25 mph falls to 20 mph throughout the city, including hundreds of unmarked roads — in many cases, too narrow for drivers to exceed 20 anyway.

• The default speed limit of 30 mph for arterials drops to 25 mph citywide,“unless otherwise posted,” according to new signs at the city entrances.

This last point may confuse drivers because some outlying streets that were historically 30 mph have sporadic signs, due to abuse and neglect. The City Council unanimously approved the changes Sept. 26 and is looking to extend the program next year.

Friends at Seattle Greenways were big proponents of this change. Kudos to Cathy Tuttle and Gordon Padelford!

Why care about the insecurity of IoT

Outages across the US caused by last week’s DDoS attacks on Dyn, an Internet infrastructure company. Credit: Downdetector.com.

Outages across the US caused by last week’s DDoS attacks on Dyn, an Internet infrastructure company. Credit: Downdetector.com.

 

If you haven’t heard by now, the internet was under attack thanks to insecure “internet of things” (IoT) devices. The weapon of choice was the Mirai botnet, which crippled well known sites like CNN, Netflix, Twitter, etc. to a grinding halt. But how exactly did insecure IoT devices help the largest to date cyberattack experienced in the Western hemisphere?

The source of the outage was a distributed distributed denial of service (DDoS) attack, which leveraged  a network of IoT devices infected with special malware, known as a “botnet”. The botnet was orchestrated to bombard a server with traffic until it collapsed under the strain. The IoT devices included Xerox, Panasonic and Samsung printers, as well as an array of Chinese manufactured short circuit TVs, DVRs, etc.

Botnets are not new, unfortunately. But a botnet comprised of IoTs is what makes last week’s massive DDoS jaw dropping and terrifying. Why should you or anyone care, especially if technology is not in your wheelhouse? Think of finding out that your garage has served as shelter for a terrorist, who is part of a much larger cell, ready to take down half the country. The terrorist was able to get into your garage easily because you don’t secure it. Guess what? You’re one of the most vulnerable targets if the attack goes down.

Now, bring this back to the IoT framework. Many households are moving toward an connected, IoT world–from refrigerators, thermostats, security systems and security cameras. When everything goes smoothly, we forget how much rely on our IoT devices. It’s only when they’re compromised do we then realize that we may have a big problem.

The crux of the data security challenge that faces us all is that the Mirai botnet revealed how vulnerable we are because of insecure IoTs. The Mirai attack exploited 100,000 connected devices or “malicious endpoints,” which resulted in an epoch attack of 1.2 terabytes/second. Your DVR or short-circuit camera may have served as an unwitting accomplice in the now legendary DDoS attack.

 

 

Highline Medical Center tells 18.5K patients that their personal/health information was inadvertently left online for months.

About 18,499 patients of Franciscan Health Highline Medical Center cannot be very happy in Burien. Franciscan Health Highline Medical Center just notified its patients of a potential data breach after a vendor working on behalf of the medical center inadvertently left patient information accessible and unprotected via the internet for several months.

R-C Healthcare Management notified the hospital July 22 that some patient information had been accessible online from April 21 through June 13.

Potentially compromised information includes patient names, service dates, health insurance information and Social Security numbers. No medical information was included. The incident affects patients whose data was involved in account reporting functions from 1993 to 1994 and 2008 to 2013, according to the hospital’s notice.

R-C Healthcare reportedly told CHI Franciscan it secured the files as of June 13. The health system says it has no knowledge any of the information has been accessed, viewed, acquired or compromised by an unauthorized third party but is offering free credit monitoring for affected patients.

Please contact Catherine Fleming, if you were a member of the roughly 18K breached, we would like to talk to you. Please call Catherine Fleming at 206.448.1777 or email her Catherine@Stritmatter.com

Speed Matters: Cyclists/Pedestrians survival chance jumps to 90% if hit by vehicle traveling 20 MPH

The chance of survival for people hit by vehicle rises to 90% if the vehicle travels at 20 MPH.

The chance of survival for people hit by vehicle rises to 90% if the vehicle travels at 20 MPH.

Speed matters.

People walking and biking have a 90% chance of surviving if hit by a car driver going 20 MPH. But at 30 MPH there is only a 50-50 chance of survival.

You can help move Seattle towards safer speed limits, right now.

What’s the proposal? The city council is considering lowering speed limits on non-arterial streets from 25 MPH to 20 MPH, and in downtown on arterial streets from 30 MPH to 25 MPH (see the City’s FAQ).

Why should you care? If you have a young child, elderly family member, or if you are a pedestrian/cyclist in Seattle, this means safer streets for you and your family.

How will this proposal make a difference? This proposal makes sense. Our neighborhood streets are where we raise our families, talk to our neighbors, play in our front yards, and walk to school. Neighborhood streets should be quiet, calm, and safe places that enhance our quality of life. Downtown streets have the highest concentration of collisions between people walking or biking and people driving, and lowering the speed limit will help. Speed limit changes are only a small, but important, part of a comprehensive Vision Zero effort to eliminate serious injuries and fatalities on our streets by 2030. Learn more.

How you can help:

  • Tell the City Council why adopting safer speed limits is important to you and your community. Or if you are too nervous to speak, hold signs in support.
  • When: 2:00 (show up at 1:50 to sign up), Tuesday, September 20th
  • Where: Seattle City Hall’s main council chambers. If you are having trouble finding the chambers, simply ask anyone you see inside the building.

Please let Gordon Padelford know if you can join to support the legislation on Tuesday.

If you can’t make it: Please call your city council members and let them know you are supportive:

Tim Burgess (Citywide): 206.684.8806 | tim.burgess@seattle.gov
Lorena González (Citywide): 206.684.8802 | lorena.gonzalez@seattle.gov
Find your city council district here.
Lisa Herbold (Dist 1): 206.684.8803 | lisa.herbold@seattle.gov
Bruce Harrell (Dist 2): 206.684.8804 | bruce.harrell@seattle.gov
Kshama Sawant: (Dist 3) 206.684.8016 | kshama.sawant@seattle.gov
Rob Johnson (Dist 4): 206.684.8808 | rob.johnson@seattle.gov
Debora Juarez (Dist 5): 206.684.8805 | debora.juarez@seattle.gov
Mike O’Brien (Dist 6): 206.684.8800 | mike.obrien@seattle.gov
Sally Bagshaw (Dist 7): 206.684.8801 | sally.bagshaw@seattle.gov

Thank you for all that you do!

NOTE: Printed with minor modifications and with permission from my friends at Seattle Greenways, specifically SG Policy Director Gordon Padelford.

 

5,300 Wells Fargo employees fired for opening dummy accounts

Usually, when I hear about thousands of employees getting fired, my heart goes out to them. But when I learned about the recent firing of 5300 Wells Fargo employees, I wondered whether losing a job was a harsh enough consequence for unauthorized use of consumers’ personal information. After all, these WF employees opened up accounts that resulted in NSF/overdraft fines, fines from third party vendors (who may have billed via autopay), etc.

According to the CFPB, “Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses.” A client had approached me several months ago, wondering why her accounts were multiplying without her recollection of signing any paperwork. Today’s CFPB press release clears up the mystery. Below is an excerpt.

Wells Fargo’s violations include:

  • Opening deposit accounts and transferring funds without authorization: According to the bank’s own analysis, employees opened roughly 1.5 million deposit accounts that may not have been authorized by consumers. Employees then transferred funds from consumers’ authorized accounts to temporarily fund the new, unauthorized accounts. This widespread practice gave the employees credit for opening the new accounts, allowing them to earn additional compensation and to meet the bank’s sales goals. Consumers, in turn, were sometimes harmed because the bank charged them for insufficient funds or overdraft fees because the money was not in their original accounts.
  • Applying for credit card accounts without authorization: According to the bank’s own analysis, Wells Fargo employees applied for roughly 565,000 credit card accounts that may not have been authorized by consumers. On those unauthorized credit cards, many consumers incurred annual fees, as well as associated finance or interest charges and other fees.
  • Issuing and activating debit cards without authorization: Wells Fargo employees requested and issued debit cards without consumers’ knowledge or consent, going so far as to create PINs without telling consumers.
  • Creating phony email addresses to enroll consumers in online-banking services: Wells Fargo employees created phony email addresses not belonging to consumers to enroll them in online-banking services without their knowledge or consent.

For anyone wondering how the CFPB helps consumers, this action against Wells Fargo’s deceptive acts should help illuminate the importance of this agency’s work.

Post Spokeo: Data breach class actions see vastly different results

In Joan Longenecker-Wells v. Benecard Services, Inc., plaintiffs were employees who learned that their personal information, including date of birth, social security number, addresses, etc. which resulted in fraudulently filed tax returns. The Third Circuit dismissed the Plaintiff’s claims, stating that their negligence claims were barred by the economic loss doctrine. The Third Circuit explains:

The District Court held that because Plaintiffs’ negligence claim sounds only in economic loss resulting from the fraudulent tax returns filed with their information, the economic loss doctrine bars their claim. We agree.

Food for thought. Eh? Can we say that a plaintiff, who experiences this grave injustice of losing the benefit of a 5 figure tax return is only sustaining economic loss. I would think that the experience is emotionally draining if not traumatic to know that a fraudster has exploited your key identifying data to extract money that was owed to you.

In contrast, we have Taylor v. Spherion Staffing LLC, et al. No. 3:15-cv-2299 (N.D. Ohio 2015), Ernst v. Dish Network, LLC, et al. No. 1:12-cv-8794 (S.D.N.Y May 27, 2016); Hillson et al. v. Kelly Services, No. 2:15-cv-10803 (E.D. Mich. June 8, 2016). These cases settled and involved allegations of statutory violations. Keep in mind that Spokeo left open the possibility that a statutory violation may involve a sufficient risk of harm to satisfy the concreteness requirement. Thus, settlement may have presented a more attractive alternative than extended litigation about the sufficiency of alleged harms.

Note: This blog post is republished from my Privacy Law Diva blog.

Cities: Listen up! Bicycles = “ordinary travel” & you must provide safe roadways.

Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.

In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a  duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.

Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road  with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining  the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”

“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.

O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.

A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.

To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”

The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.

The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.

“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”

Self-Driving Cars: Why they need to be at least 2x’s better than humans.

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

True to my technophile self, I’ve embraced all the latest advances in automobile technology. I was driving a few friends back from lunch a few days ago, and they were aghast at how I didn’t even turn my head as my car backed into a tight space. So, the news of the fatal crash involving a Tesla-S in self-driving mode (aka “Autopilot”) broke my heart. I pictured the proud Tesla owner, Joshua Brown (a tech consulting firm owner) who had grown accustomed to trusting his car to drive him in stop and go traffic. That fateful day was sunny, exceptionally bright, when a tractor-trailer turned left in front of the Tesla driver.

The Tesla news release explained:

Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.

While my enthusiasm for autonomous cars remains in high gear, this tragedy highlights the fact that the engineers need to reexamine their algorithms to uncover any other possible scenarios where sensors may not react quickly enough to keep all of the passengers safe.

Tesla states:

Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that Autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving.

This begs the question: Why have an Autopilot function if an alert driver is constantly required to oversee the Autopilot? Human nature will result in drivers allowing themselves to get distracted, once putting their cars into self-driving mode. What’s the purpose of an autonomous car, if the human behind the steering wheel cannot let her mind wander for even a moment?

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