Only 6% of Florida’s motorists are motorcyclists, yet nearly 18% of all Florida traffic-related deaths occur annually on motorcycles. The Florida Department of Transportation (FDOT), in an effort to make motorcycling safer, created the Motorcycle Strategic Safety Plan (MSSP). The purpose of the MSSP is to reduce motorcycle crash, serious injuries, and death in Florida. The MSSP has a five-year plan outlined in the Florida Motorcycle Strategic Safety Plan published in 2009.
Florida’s tropical weather, beautiful beaches, and magnificent roadways, like the Overseas Highway linking Miami to Key West, attract motorcycling enthusiasts from around the world. In addition, Florida hosts several of the preeminent motorcycle events in the country. Daytona Beach, Florida is located in Volusia County and hosts both Biketoberfest each October and Daytona Bike Week each March. These events alone attract thousands of bikers to Bike Week Events in Daytona, Deland, New Smyrna, and Ormond Beach. The events are packed with bike games, bikini bike washes, bikini contests, bike shows, burnout contests and loud pipes, concerts, rodeos, and wrestling. Unfortunately, they are also very dangerous and have often been marred by crashes and injuries.
Since 2001 the number of Florida motorcycle crashes and injuries has steadily increased in comparison with other types of motor vehicle crashes. In addition, motorcycle crashes often land bikers in hospital emergency departments, sometimes requiring inpatient care and treatment. Fatal injuries only occur in a small fraction of crashes. The majority of Florida biker wrecks require expensive prolonged hospitalization. Only about half of Florida’s motorcycle crash victims have medical insurance, leaving about a third with being either uninsured or underinsured. Sometimes the medical bills, lost wages and property damage are astronomical, devastating the injured biker and their families. According to the FDOT there are six major factors influencing the likelihood of a motorcycle crash:
- Rider Characteristics: skill, experience, and age
- Helmet Use
- Road Safety
- Internet Use
- Television Viewing Habits
Statistically 57 year old riders are most likely to end up in a hospital with a non-fatal injury. While motorcycle riders age 25-34 are more likely to be fatally injured. The majority of injured motorcycle enthusiasts are actually Florida residents. Even though Volusia County is Florida’s biker’s paradise, it is statistically the most dangerous place to ride a motorcycle in the State of Florida. Palm Beach, Orange County, Miami-Dade County, Broward, Brevard, Duval, and Hillsborough Counties also have the highest number of fatal motorcycle crashes in Florida.
Our South Florida motorcycle injury law firm strongly recommends that all Florida bikers use helmets when riding. Currently about half of Florida’s bikers use helmets. In 2000, Florida became one of five states to repeal the helmet law. Florida Statutes §316.211 allows any person over 21 years of age to operate or ride a motorcycle as long as they have an insurance policy that provides at least $10,000 in medical benefits for injuries incurred as a result of a crash.
In addition, we strongly urge anyone operating or sitting as a passenger on a motorbike not to consume any alcohol. Studies show that motorcycle crashes involving alcohol are more likely to result in death. Please do not drink and ride.
Motorcycle accident claims are difficult and complex traffic cases for lawyers to win because it is often very difficult to prove how they exactly happen. When our personal injury law firm in Miami investigates a motorcycle crash, we utilize experts in accident reconstruction and biomechanics to help us understand how and why the accident occurred.
It is important for motorcycle accident lawyers to reveal and exchange the opinions of their experts with the defense team well in advance of the trial or they run the risk that the trial judge will not permit the jury to hear the testimony. Accident reconstruction testimony is very invaluable in determining the speed and direction of the motorcycle and the other vehicles at impact and whether or not the accident could have been prevented.
Recently, a Citrus County Florida jury heard the case of James Kellner who sued Cynthia and Frank David over the collision of their SUV with his motorcycle on a highway with a posted speed limit of 45 mph. As in most motorcycle accidents liability or fault was contested. The Davids defended the lawsuit by claiming that they did not see Mr. Kellner’s motorcycle until moments before the impact. During the trial, it was highly contested who saw who first and whether or not the accident could have been avoided. If the Davids could convince the jury that it was Kellner’s fault, they would not be responsible for paying for Kellner’s medical expenses, pain and suffering or lost wages that Kellner claimed he had incurred as a result of the accident.
Both sides initially disclosed that they had retained accident reconstruction experts to testify at trial. However, right before the trial, Mr. Kellner’s lawyers withdrew their named accident reconstruction, making it appear that they would not be offering expert testimony on how the accident occurred, instead relying upon Mr. David and a video tape of the incident obtained from the CCTV of a nearby store.
On the second day of trial, Mr. Kellner’s lawyers attempted to have Mr. Kellner testify as to the distance he had traveled before impact by having asking him to go out to the scene and take measurements him two days before the day of the testimony.
The defense objected to this attempt to insert what would typically be considered to be an “expert opinion” into the case by way of the plaintiff and Patricia Thomas, the trial judge agreed, forbidding Mr. Kellner from testifying about the evidence he gathered at the site of the accident. Mr. Kellner attempted to use this data in conjunction with Google Earth images to convince the jury that the Davids were speeding and therefore at fault for the crash.
An appeal followed in Florida’s 5th District Court of Appeal brought by Mr. Kellner who believed that Judge Thomas was wrong for preventing him from testifying to the jury about the data he obtained from the accident scene.
Before a trial occurs, both sides are supposed to have a fair opportunity to discover or learn what the facts and evidence is as well as what the anticipated testimony will be from fact and expert witnesses. When a party tries to have testimony admitted that was not previously disclosed or discovered for any reason, the trial judge must weigh whether or not the admission of the testimony, in this case, Mr. Kellner’s data would prejudice the defense, which had already had their expert testify to the jury.
The legal analysis that Florida uses in determining when and if late testimony would be admissible is Florida Supreme Court’s case King v. Binger Pest Control.
In the King case, Florida’s Supreme Court outlined the circumstances when and if a previously undisclosed witness could testify, making it clear that trial judges have wide discretion in determining the admissibility of evidence at trial and that testimony should not be automatically forbidden simply because it is being offered after the cut-off or in this case, once the trial had actually begun.
Binger outlines a three-prong analysis for the admission of previously undisclosed testimony:
1) Does the objecting party have an ability to cure the prejudice or have independent knowledge of the witness’ testimony?
2) Is the calling party bringing forth this late testimony in bad faith?
3) Will the admission of the testimony interfere with the orderly progression of the trial?
The Binger factors, as they are commonly referred to, are not exhaustive. However, considering the fact that Mr. David was directed by his lawyers to go out to the accident scene a few days before testifying at trial; long after the pretrial discovery period had expired, to obtain measurements with the intention of surprising both the jury and the Kellner’s lawyers is wrong. It is hard to not agree with the judge that this testimony should have been excluded. Read the entire 5th DCA opinion in the case of Kellner v. David.
I believe that trials need to be fair for both sides. Bringing this kind of testimony to the jury in the middle of a trial without allowing the defense the opportunity to prepare and contest the measurements is not fair. Fortunately, Mr. Kellner and his lawyers won the case without the need for Mr. Kellner to serve as his own expert.
For nearly 25 years, I have represented families of people injured and killed across the State of Florida in motorcycle accidents. If you have been involved in a traffic accident in Florida while riding a motorcycle, call Aronfeld Trial Lawyers for a free initial consultation regarding your legal rights as an accident victim.