Richard O’Dea has been recertified by the Minnesota State Bar Association (MSBA) as a Board Certified Civil Trial Law Specialist.  The certification process is earned by leading civil litigators that have completed a rigorous approval process that includes written examination, peer review and documented experience. Less than 3% of all licensed Minnesota attorneys achieve this level of accreditation.

Additional information regarding Mr. O’Dea credentials and experience are available on his attorney biography.  Mr. O’Dea is available for consultations by appointment.  Please contact us at 651-633-9367 to schedule a consultation today.

“Maintenance or use of a motor vehicle” in defined in the Minnesota No Fault Act ¹ generally includes all activities incident to “use of a motor vehicle as a vehicle”, such as driving, and specifically includes the following actions involving a motor vehicle:

• occupying;
• entering; and
• alighting.

Maintenance or use of a motor vehicle does not include:

• conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises; or
• conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into or alighting from it.

In North River Ins. Co. v. Dairyland Ins. Co. ², the Minnesota Supreme Court enumerated the following general principles for determining whether an injury arises from the maintenance or use of a motor vehicle:

1. There must be some causal connection between the injury and the use of the vehicle for transportation purposes. ³
2. The requisite connection between use and injury is “something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury.” ⁴
3. The injury is a natural and reasonable incident or consequence of the use of the vehicle. ⁵
4. The motor vehicle must be an active accessory to the injury sustained. ⁶

Shortly thereafter the Minnesota Supreme Court revisited this issue in Continental Western Ins. Co. v. Klug ⁷ and provided the following three-step test in determining whether an injury arose out of the “use or maintenance” of a motor vehicle:

1. Consider the extent of causation between the motor vehicle and the injury.
2. Determine whether an act of independent significance occurred, breaking the causal link between “use” of the motor vehicle and the injuries inflicted.
3. Determine whether the motor vehicle was being used for transportation purposes.

For example if an individual is rear-ended while at a complete stop for a red light, they would likely receive a “1” (no clear contributing factor) under both Factor 1 and Factor 2. If an drunk driver ran a red light and caused an accident, that driver would likely would receive Factors codes “18” (chemical impairment) and “5” (disregarded traffic control device).

The reporting of numerical factors for the contributing causes of car accidents allows State officials to easily run statistical studies on the causes of specific types of accidents. For instance, the three most common reported factors involved in car accidents in 2011 were: driver inattention/distraction (15); failure to yield right-of-way (2); and illegal or unsafe speed (3).

The following is a list of available factor codes:

Factors marked with an asterisk must be further described in the “Accident Detail” portion of the report.

• e-mails;
• text messages;
• instant messages;
• a command or request to access a website (i.e. browsing the internet).

An “electronic message” does not include:

• voice or other data transmitted as a result of making a phone call;
• or data transmitted automatically by a wireless communications device without direct initiation by a person

There are also exceptions to the general boycott on the transmission of an electronic message when a cellular phone is being used:

• solely in a voice-activated or other hands-free mode;
• for making a cellular phone call; or
• for emergency purposes.

Given the advancements in voice-activated features on cellular phones (read: iPhone’s Siri, Google’s Voice Search, etc.), there are likely to be some shades of gray in the interpretation of this statute’s overriding exception involving voice activation or other hands-free modes.

From the context of criminal consequences, the charges and sentences for texting and driving are relatively slim.  According to Paul Atchley, Ph.D of the University of Kansas, texting while driving is about 6 to 8 times more dangerous than driving while drunk.  The story calls for harsher criminal penalties for those that text while driving.

The story does not discuss the civil penalties and consequences that can stem from car accidents involving texting and driving.  Evidence of cellular phone usage can be used to establish civil liability for damages caused in a car accident.  It is also possible to seek punitive damages against a driver that acts with a “deliberate disregard for the rights and safety of others.” Testimony of the texting driver could potentially be used to establish this standard.  Punitive damages, however, cannot be sought unless a Court approves of such a claim.

If you have been injured in a car accident by a driver that was using a cellular phone, contact one of the attorneys at Palmer O’Dea Law Firm today.

Mary Jo O’Dea

• 651-633-9367
• 651-633-4210
• mjodea@polawfirm.com

Mary Jo O’Dea became a full time attorney at Palmer O’Dea as of January 1, 2013. Mary Jo has been with Palmer O’Dea as a part-time attorney since 2005.

Mary Jo received her law degree from Hamline University School of Law and her undergraduate degree from Gustavus Adolphus College. Mary Jo practices in the areas of personal injury, insurance disputes, and other civil litigation matters.

The NHTSA indicates that the most commonly observed issues with car seat installations are as follows:

1. Wrong harness slot used – The harness straps used to hold the child in the car seat were positioned either too low or too high;
2. Chest Clip Positioning – Harness chest clip positioned over the abdomen rather than the chest or not used at all;
3. Loose car seat installation – The restraint system moved more than two inches side-to-side or front to back; anything more than one inch is too much.
4. Loose harness – More than two inches of total slack between the child and the harness strap; there should be no slack.
5. Seat belt placement was wrong – Lap belt resting over the stomach and/or shoulder belt on the child’s neck or face.

Remember to make certain that you have the Right Seat, Right Size, and Right Use in order to assure the optimal safety of your child (chart below).  Once you have the appropriate child seat installed, there are plenty of providers of car seat inspections (search by zip code), most of which are at local police and fire stations.

• Motorists must stop at least 20 feet from a school bus that is displaying red flashing lights and/or its stop arm is extended when approaching from the rear and from the opposite direction on undivided roads.
• Red flashing lights on buses indicates students are either entering or exiting the bus.
• Motorists are not required to stop for a bus if the bus is on the opposite side of a separated roadway (median, etc.) — but they should remain alert for children.
• Watch for school crossing patrols and pedestrians. Reduce speeds in and around school zones.
• Watch and stop for pedestrians — the law applies to all street corners, for both marked and unmarked crosswalks (all street corners) — every corner is a crosswalk.

• 10,228 alcohol-impaired fatalities in 2010 accounted for nearly one out of three highway deaths on U.S. roads;
• On average, there is approximately one death every 51 minutes due to intoxicated driving;
• Over two thirds of drunk driving deaths (7,145 or 70%) involved drivers with a blood alcohol concentration (BAC) of .15 or higher.

Additional statistics are available on the NHTSA website.

In furtherance of the annual safety campaign NHTSA Administrator David Strickland has partnered with the United States Department of Transportation, Mothers Against Drunk Driving (MADD) and others in effort to reduce the number of injuries and deaths that result from drunken driving.