First Line Of Defense Against Unsafe Drivers

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There are several circumstances in which drivers may be ticketed for illegally blocking or impeding traffic by driving too slowly or failing to yield to a long line of vehicles behind them. Let's look briefly at the most common.

  1. Body's Third Line Of Defense
  2. First Line Of Defense Against Unsafe Drivers
  3. First Line Of Defense
  4. What Is The Body's First Line Of Defense

Federal Judge stops prosecutors abuse of power against ED Magedson Founder of Ripoff Report. A business' first line of defense.

Driving Too Slowly in Left Lane

Your state's law will say something like:

Any vehicle proceeding upon a highway at a speed less than the normal speed of traffic moving in the same direction at such time shall be driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, except when overtaking and passing another vehicle pro ceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway. If a vehicle is being driven at a speed less than the normal speed of traffic mov ing in the same direction at such time, and is not being driven in the right-hand lane for traffic or as close as practicable to the right-hand edge or curb, it shall constitute evidence that the driver is operating the vehicle in violation of this section.

In plain English, this law means if you're poking along, you had better be in the right-hand or slow lane unless you're preparing to turn left.

The elements of the violation are:

  1. You drove at a speed 'less than the normal speed of traffic,' and
  2. You didn't drive 'as close as practicable to the right-hand edge or curb.'

Of course, if you read your statute carefully, you'll likely find that there is one big exception to this move-to-the-right-if-you-are-driving-slowly requirement. As long as it is permitted, you have the right to move to the left to pass an even slower vehicle, even if doing so means you are briefly driving slower than the normal speed in that lane. For example, if you are driving 35 mph in a 45-mph zone and there is a farm tractor, an oversize motor home, or some other slow vehicle in the right lane doing 20 mph, it's okay for you to be one lane to the left to pass it.

Body's Third Line Of Defense

The best way to defend against this ticket is to prove:

  • In an 'absolute' speed limit state (see Fight Your Speeding Ticket: What is the Law?) you were traveling at the posted speed limit.
  • You were preparing to make a left turn (if true).
  • You were passing even slower-moving traffic to the left and were prepared to return to the slow lane as soon as it was safe.
  • Your speed, although below the posted limit, was the only safe speed for that road under the conditions you were driving through, which could include rain, wind, darkness, or other dangerous conditions.
  • You were blocking the traffic behind you only because, in fact, it wasn't safe to go any faster.

In court, the officer must testify only that you were driving below the speed limit, or, in a 'presumed' speed limit state, at a speed slower than other safe-driving traffic.

It is then up to you to show a legal excuse for your action—for example, road conditions required that you slow down, or the glare from a reflected window prevented you from seeing clearly.

Impeding Traffic

This offense is similar to driving too slowly in the left lane. The difference is that you can be charged with the offense even if you're in the curb lane or the only lane on a one-lane road.

A typical impeding traffic law says:

No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation, because of a grade, or compliance with the law.

The elements of this violation are:

  1. You drove on a highway at a speed less than the 'normal and reasonable' speed of traffic.
  2. Your reduced speed was not made necessary by safe operation or a grade, and
  3. You were not speeding.

The success or failure of your defense will normally pivot on whether you can convince the judge that your view of events was more reasonable than that of the officer's. Your best defense is to show that your slow speed was reasonable because of road, weather, or traffic conditions. An officer trying to make this one stick will likely testify that you were driving below the speed limit and holding up a long line of frustrated, finger-gesturing, horn-honking drivers. The law will excuse your slow driving if you can show:

  • You were traveling at the posted speed limit, or safely above it in a 'presumed' speed-limit state, or
  • You were driving slower than the posted speed, but lower speed was 'necessary for safe operation' of your vehicle.

During cross-examination ask the officer, 'How fast was traffic moving when I was stopped?' If the officer claims not to remember (but can remember that cars were trying to get past you), you should prevail if you can testify that you were driving at the speed limit while the cars trying to pass you were attempting to violate the posted limit.

But if you were driving much under the posted limit, this first defense won't work. In this situation, be prepared to testify and document—with photos or diagrams—that poor road conditions, bad weather, steep grades, or sharp curves made a higher speed unsafe. Although personal reasons normally won't help, this is one circumstance where I have occasionally seen a judge side with a motorist who tells a good story. If, for example, you were carrying 12 dozen cartons of raw eggs to an Easter celebration or moving your grandmother's 100-year-old dishes over a poorly paved road, it won't hurt to work it in to your testimony.

Rough pavement can be a reason to go slowly. Speed limits are normally posted based on an assessment of how fast it is safe to go on a particular road. Occasionally, however, conditions change for the worse after the speed limit is posted. This is particularly likely if construction or heavy wear has degraded the road surface. So if the pavement was in bad shape, make sure you document it with photographs and argue that it was unsafe to go faster than your speed.

Failing to Use 'Turnouts'

A turnout is usually a patch of pavement on the right side of the road where slow drivers can pull off the road to let faster drivers go past. If you're driving slowly and there are a whole lot of drivers behind you wanting to go faster, you normally have a legal duty to pull over and let them go by.

Here, a typical state law reads like this:

On a two-lane highway where passing is unsafe because of traffic in the opposite direction or other conditions, a slow- moving vehicle, including a passenger vehicle, behind which five or more vehicles are formed in line, shall turn off the roadway at the nearest place designated as a turnout by signs erected by the authority having jurisdiction over the highway, or wherever sufficient area for a safe turnout exists, in order to permit the vehicles following it to proceed. As used in this section, a slow-moving vehicle is one that is proceeding at a rate of speed less than the normal flow of traffic at the particular time and place.

The elements of this violation include:

  1. You were driving a 'slow-moving vehicle,' meaning you were driving slower 'than the normal flow of traffic' at the time.
  2. You were on a highway with two lanes, one in each direction.
  3. There were at least five other vehicles behind yours that all slowed down because of you (this number can vary from state to state), and
  4. You failed to pull over at a marked 'turnout' or other widened area to the right where you could safely pull over.

Driving slowly because of safety concerns, such as a degraded pavement, is not a defense to this charge, since you could still have used the turnout. Your only available defense is normally that, for some good reason, you were unable to pull over safely to let the other traffic past. For example, you may not have been able to use the turnout because you were pulling a trailer, trying to avoid a hole in the road, or afraid of slipping on snow or ice.

Roberto Chicas, a 35-year-old San Francisco bartender, climbed into an UberX car around 2 a.m. last week and expected to get home safely. Instead, he landed in the hospital after his driver allegedly bashed in his face with a hammer after a dispute over the route.

The hammer attack left Chicas with a fractured skull and a severely bloodied eye. He was hospitalized for three days and is 'in serious danger of losing his eye,' said his attorney, Harry Stern. His driver, 26-year-old Patrick Karajah, was charged with two felony counts of assault and battery and is free on $125,000 bail.

'The real issue now is whether he's going to permanently lose his sight in his eye,' Stern said on Monday. 'Right now there's so much blood in his eye they don't know whether that's going to resolve. His skull is fractured. He's going to need reconstructive surgery on his face.'

Chicas's medical bills will cost hundreds of thousands of dollars, Stern said. And to add insult to injury, Uber has yet to refund took a week to refund Chicas's ride, Stern said -- which means Uber charged Chicas the $1 'Safe Rides Fee' it says goes toward keeping riders safe. (Update, 10/1: Uber refunded the ride about an hour after this story was published, Stern and Uber both said.)

Stern says he's likely to sue Karajah -- and Uber, too.

'There's no doubt that the trail of liability leads back to Uber's doorstep,' Stern said. 'We believe they should pay.'

Uber clearly disagrees. Its terms of service, like those of Lyft, Sidecar, and similar sharing-economy startups like Airbnb, make it clear over and over again that they are not liable under any circumstances for bad things that might happen when you use the service.

'YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY TRANSPORTATION PROVIDER,' Uber's terms of service say.

Ride at your own risk of hammer attack, in other words. But law experts says that a company's terms of service are far from waterproof -- plaintiff's lawyers usually find ways to poke holes in them. So what would it take for Uber to end up paying the bill?

Uber passenger Roberto Chicas could lose an eye after his driver allegedly attacked him with a hammer, his attorney said. (Courtesy Harry Stern)

'Uber Is A Technology Company, Not A Transportation Company'

Uber's first line of defense, and one that it has trotted outmanytimes, is that it's a marketplace and not a transportation provider. Whether you buy it or not, that's a key distinction because online marketplaces are protected from the offline connections they facilitate because of Section 230 of the Communications Decency Act.

Section 230 is invoked when Craigslist sellers kill buyers, when Airbnb guests trash homes, when eBay users sell forged autographs or when online users post libelous or illegal content.

Does it apply to Uber? Uber thinks so, but experts aren't sure. Since Uber does control some of the matchmaking -- passengers can't choose their drivers, and prices are controlled by Uber -- it might not be a free enough marketplace to qualify, said lawyer Venkat Balasubramani. Even Eric Goldman, a Santa Clara University law professor who usually staunchly defends Section 230, wasn't sure that Uber would qualify: 'There's a fine line between an online marketplace and a retailer,' he said.

Section 230's defenses might also be crumbling. A federal judge recently ruled that a modeling website couldn't hide behind Section 230 when it was sued for not warning its models that rapists used the site to target new victims. 'Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet,' the judge wrote in the opinion.

Negligent Hiring or Training

Chicas's attorney Stern believes Uber might be vulnerable in this area. Unlike other violent drivers with criminal histories who passed Uber's 'zero-tolerance' background checks -- which is a whole other problem for Uber -- Karajah doesn't have a criminal history, authorities said.

But Uber could still be held liable if attorneys can show they failed to properly train drivers on how to navigate the city and how to deal with angry customers, Stern said. Proper training could arguably have prevented the route dispute in the first place or taught the driver how to defuse an argument -- instead of reaching for a hammer. This approach might hold water, given that drivers say Uber doesn't meet prospective drivers for training before sending them off onto the road.

'Part of training is how to deal with difficult confrontational situations,' said Charles Rathbone, an assistant manager with San Francisco cab company Luxor. 'We teach drivers how to get out of these things.'

First Line Of Defense Against Unsafe Drivers

Inadequate Warning

Lawyers could also claim that Uber didn't adequately warn users that they ride at their own risk, especially after the modeling website ruling suggested that online marketplaces can still be found liable for 'failure to warn.'

Uber assures its users it has 'an industry-leading background check process, regular motor vehicle checks, driver safety education, development of safety features in the app, and more.' Meanwhile, its terms of service say you are knowingly agreeing to possibly die in an Uber and acknowledge it's not their fault.

That disconnect might get them in trouble, Goldman said. 'They could argue that Uber should have warned the customers that injury by hardware was one possible risk of agreeing to the relationship,' he said.

Are Uber Drivers Employees Or Independent Contractors?

Uber, Lyft, Sidecar and others all hire drivers as independent contractors. But there's some argument that that's a misclassification, given the amount of control the companies exert over drivers. Companies are usually less liable for the conduct of independent contractors than their employees. But Uber's driver classification might not hold up in court -- just like a federal court ruled that FedEx drivers were misclassified as independent contractors earlier this year.

'I think one of the risks is that there are so many specifications of being an Uber or Lyft driver is that it creates the risk of the marketplace controlling the behavior of the drivers to such an extent that they really are employees,' Goldman said.

What If This Had Been A Taxi Driver?

Taxi drivers assault passengers too. But cab companies are quick to jump on attacks like this and point out that they wouldn't try to avoid liability in a similar incident.

'We recognize the liability stops with us,' Rathbone said. 'People do not have to sign away all their rights to be a passenger in a taxicab.'

Rathbone said that Luxor's $1 million general liability policy has an assault and battery addition, meaning it would cover attacks on riders by drivers. And a D.C. court has ruled that taxi companies are responsible for their driver's acts if the driver is in a car with company insignia -- regardless of the driver's status as employee or independent contractor.

Uber's liability in assaults is being tested in various cases across the country, though I haven't yet found one where Uber has settled or paid any damages. (Uber did not respond to questions about compensating passengers for assaults but gave a boilerplate response that said, 'Uber continues to connect riders and drivers with the safest rides on the road.') In Oklahoma City, a judge dismissed Uber as a defendant from a case where a driver punched his passenger and broke his teeth, ruling that Uber's drivers are independent contractors, not employees, and that the company was therefore not liable. An Arlington, Va. case where a driver attacked a passenger after the passenger burped is ongoing.

Even Chris Dolan, the personal injury lawyer who filed the suit against Uber in the case where a driver struck and killed a 6-year-old girl, is unsure where this will go. 'We're in uncharted territory here,' he said.

First Line Of Defense Against Unsafe Drivers

Update: Uber spokeswoman Eva Behrend sent along a new statement: 'The injuries suffered by Mr Chicas are deplorable and we wish him a quick recovery. Uber’s insurance provider is in contact with representatives of both the rider and driver, and of course we will continue to cooperate with authorities throughout the investigation.'

First Line Of Defense

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Roberto Chicas, a 35-year-old San Francisco bartender, climbed into an UberX car around 2 a.m. last week and expected to get home safely. Instead, he landed in the hospital after his driver allegedly bashed in his face with a hammer after a dispute over the route.

The hammer attack left Chicas with a fractured skull and a severely bloodied eye. He was hospitalized for three days and is 'in serious danger of losing his eye,' said his attorney, Harry Stern. His driver, 26-year-old Patrick Karajah, was charged with two felony counts of assault and battery and is free on $125,000 bail.

What Is The Body's First Line Of Defense

'The real issue now is whether he's going to permanently lose his sight in his eye,' Stern said on Monday. 'Right now there's so much blood in his eye they don't know whether that's going to resolve. His skull is fractured. He's going to need reconstructive surgery on his face.'

Chicas's medical bills will cost hundreds of thousands of dollars, Stern said. And to add insult to injury, Uber has yet to refund took a week to refund Chicas's ride, Stern said -- which means Uber charged Chicas the $1 'Safe Rides Fee' it says goes toward keeping riders safe. (Update, 10/1: Uber refunded the ride about an hour after this story was published, Stern and Uber both said.)

Stern says he's likely to sue Karajah -- and Uber, too.

'There's no doubt that the trail of liability leads back to Uber's doorstep,' Stern said. 'We believe they should pay.'

Uber clearly disagrees. Its terms of service, like those of Lyft, Sidecar, and similar sharing-economy startups like Airbnb, make it clear over and over again that they are not liable under any circumstances for bad things that might happen when you use the service.

'YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY TRANSPORTATION PROVIDER,' Uber's terms of service say.

Ride at your own risk of hammer attack, in other words. But law experts says that a company's terms of service are far from waterproof -- plaintiff's lawyers usually find ways to poke holes in them. So what would it take for Uber to end up paying the bill?

Uber passenger Roberto Chicas could lose an eye after his driver allegedly attacked him with a hammer, his attorney said. (Courtesy Harry Stern)

'Uber Is A Technology Company, Not A Transportation Company'

Uber's first line of defense, and one that it has trotted outmanytimes, is that it's a marketplace and not a transportation provider. Whether you buy it or not, that's a key distinction because online marketplaces are protected from the offline connections they facilitate because of Section 230 of the Communications Decency Act.

Section 230 is invoked when Craigslist sellers kill buyers, when Airbnb guests trash homes, when eBay users sell forged autographs or when online users post libelous or illegal content.

Does it apply to Uber? Uber thinks so, but experts aren't sure. Since Uber does control some of the matchmaking -- passengers can't choose their drivers, and prices are controlled by Uber -- it might not be a free enough marketplace to qualify, said lawyer Venkat Balasubramani. Even Eric Goldman, a Santa Clara University law professor who usually staunchly defends Section 230, wasn't sure that Uber would qualify: 'There's a fine line between an online marketplace and a retailer,' he said.

Section 230's defenses might also be crumbling. A federal judge recently ruled that a modeling website couldn't hide behind Section 230 when it was sued for not warning its models that rapists used the site to target new victims. 'Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet,' the judge wrote in the opinion.

Negligent Hiring or Training

Chicas's attorney Stern believes Uber might be vulnerable in this area. Unlike other violent drivers with criminal histories who passed Uber's 'zero-tolerance' background checks -- which is a whole other problem for Uber -- Karajah doesn't have a criminal history, authorities said.

But Uber could still be held liable if attorneys can show they failed to properly train drivers on how to navigate the city and how to deal with angry customers, Stern said. Proper training could arguably have prevented the route dispute in the first place or taught the driver how to defuse an argument -- instead of reaching for a hammer. This approach might hold water, given that drivers say Uber doesn't meet prospective drivers for training before sending them off onto the road.

'Part of training is how to deal with difficult confrontational situations,' said Charles Rathbone, an assistant manager with San Francisco cab company Luxor. 'We teach drivers how to get out of these things.'

Inadequate Warning

Lawyers could also claim that Uber didn't adequately warn users that they ride at their own risk, especially after the modeling website ruling suggested that online marketplaces can still be found liable for 'failure to warn.'

Uber assures its users it has 'an industry-leading background check process, regular motor vehicle checks, driver safety education, development of safety features in the app, and more.' Meanwhile, its terms of service say you are knowingly agreeing to possibly die in an Uber and acknowledge it's not their fault.

That disconnect might get them in trouble, Goldman said. 'They could argue that Uber should have warned the customers that injury by hardware was one possible risk of agreeing to the relationship,' he said.

Are Uber Drivers Employees Or Independent Contractors?

Uber, Lyft, Sidecar and others all hire drivers as independent contractors. But there's some argument that that's a misclassification, given the amount of control the companies exert over drivers. Companies are usually less liable for the conduct of independent contractors than their employees. But Uber's driver classification might not hold up in court -- just like a federal court ruled that FedEx drivers were misclassified as independent contractors earlier this year.

'I think one of the risks is that there are so many specifications of being an Uber or Lyft driver is that it creates the risk of the marketplace controlling the behavior of the drivers to such an extent that they really are employees,' Goldman said.

What If This Had Been A Taxi Driver?

Taxi drivers assault passengers too. But cab companies are quick to jump on attacks like this and point out that they wouldn't try to avoid liability in a similar incident.

'We recognize the liability stops with us,' Rathbone said. 'People do not have to sign away all their rights to be a passenger in a taxicab.'

Rathbone said that Luxor's $1 million general liability policy has an assault and battery addition, meaning it would cover attacks on riders by drivers. And a D.C. court has ruled that taxi companies are responsible for their driver's acts if the driver is in a car with company insignia -- regardless of the driver's status as employee or independent contractor.

Uber's liability in assaults is being tested in various cases across the country, though I haven't yet found one where Uber has settled or paid any damages. (Uber did not respond to questions about compensating passengers for assaults but gave a boilerplate response that said, 'Uber continues to connect riders and drivers with the safest rides on the road.') In Oklahoma City, a judge dismissed Uber as a defendant from a case where a driver punched his passenger and broke his teeth, ruling that Uber's drivers are independent contractors, not employees, and that the company was therefore not liable. An Arlington, Va. case where a driver attacked a passenger after the passenger burped is ongoing.

Even Chris Dolan, the personal injury lawyer who filed the suit against Uber in the case where a driver struck and killed a 6-year-old girl, is unsure where this will go. 'We're in uncharted territory here,' he said.

Update: Uber spokeswoman Eva Behrend sent along a new statement: 'The injuries suffered by Mr Chicas are deplorable and we wish him a quick recovery. Uber’s insurance provider is in contact with representatives of both the rider and driver, and of course we will continue to cooperate with authorities throughout the investigation.'