Las Vegas Injury & Accident Attorney Blog

Question: My son was in a motorcycle accident in 2008. He passed away at the scene. His girlfriend was on the motorcycle at the time and survived. She has since hired an attorney and they found the driver of the car partial at fault. Is there any recourse that I as his mother can take ?

Answer:  Sorry to hear about your loss.  I too have a motorcycle, and the darn thing is dangerous–but so are the drivers that are on our roads.  The issue presented in this case for potential recovery on your son’s behalf deals with the doctrine of comparative negligence and the law of joint and several liability.  If your son was more than 50% at fault, you (as the heir) can’t make a claim in Nevada. However, if your son was 50% or less at fault, he can make a claim for his damages–which are huge because he passed away.

Most of the time motorcycle accidents are caused by the negligence (carelessness) of the other driver, however, their are always exceptions.  If will be important to investigate the case and see how well the police report documents facts–especially any eye witness accounts–including the passenger girlfriend.   The girlfriend, on the other hand, has a much different case.

As a passenger, she is fault free.  She can collect from your son’s policy AND the other driver–this is the law of joint and several liability.  This basically means she can collect if the driver of ANY vehicle was 1% or more at fault, so if their is shared responsibility for the accident, even if slight, she can exhaust both insurance policies.  If your son had no insurance or minimal insurance coverage, that would explain the claim against the other party.  You only have two years in Nevada to make a claim–so you MUST act ASAP before the two year anniversary or you totally lose your rights.

Using a cell phone, Eating and drinking, Talking to passengers, Grooming, Reading, including maps, Using a PDA or navigation system, Watching a video, Changing the radio station, CD, or Mp3 player are all major causes of accidents because they are examples of distracted driving.   Wouldn’t be a shame if your airline pilot decided to text while landing the airplane and missed the runway?

Well, the fixed attention required to operate machinery is and should be a mandatory choice for the driver, but we are all human and we can actually think and do two things at once.  Society appears to be at ease with a certain level of distractions while driving:  the radio, billboards, etc, all take your eyes off the road, but we tend to allow certain distractions for the sake of functioning.   Imagine no billboards on the freeways?  Not likely to ever happen, but certainly, at least one auto accident has occurred because someone looked too long at the billboard and didn’t realize traffic had stopped in front.  Should we sue the billboard company for creating the distraction, or the county for allowing the billboard?  Likely not given our tolerance for certain levels of distractions.  If you have been the victim of distractive driving call Benson & Bingham today 702-382-9797.

Below are some statistics from the U.S. department of Transportation:

In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.

In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).

The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.

The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).

Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).

An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.

Driving while using a cell phone reduces the amount of brain activity associated with driving by 37 percent. (Source: Carnegie Mellon)

Nearly 6,000 people died in 2008 in crashes involving a distracted driver, and more than half a million were injured. (NHTSA)

The younger, inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes.

Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)

Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)



Car Accidents can be avoided if everyone uses proper care.  The problem is that we are human and we err.  Often we go beyond just making careless mistakes, but do things that personal injury attorneys love:  reckless behavior.    So what is the difference between reckless behavior and negligent?  Under definition, negligence equates to just breaching a duty owed—in essence being stupid:  day dreaming through a red light, grabbing that spilling coffee as you hit the yellow light that turned red, simply missing the big red stop sign, or playing with the radio as you crash into the rear end of the family wagon on the highway.  These are the mistakes we make as drivers.  The problem is when we do the next level of culpability: encountering a dangerous situation that you know to be dangerous, and do it anyway—that is recklessness.  This is a very fine line to adjudicate.  Is it reckless to drive a car after you have been drinking—many think so.  In fact, public policy finds that we want to discourage this behavior so much we will assign punishing damages to those persons.  Elements of punitive damages are designed to punish drivers or their employers for conduct that is “reprehensible.”

We find it reprehensible to get intoxicated and drive a deadly weapon.  We find it reprehensible to shoot a gun into a crowd thinking we will miss.  We find it reprehensible for a truck driver to do crystal methamphetamine and drive for 48 hours straight, or for airline pilot to cockpit the airplane after a few beers.  So, the question begs:  is it reprehensible to drive a vehicle using a cell phone?  We know it is dangerous.  We know it is distracting, but yet most of us do it.  Cell phones while driving cause deaths.   In California last year, the engineer on a train was “texting” on his cell phone when the train collided with another.  Reprehensible?  Yes.   What do you think?

Employers also must be careful not to condone or encourage cell phone use for its employees on the road.   The consequences are dire.

In 2009, 243 people died on Nevada roads according to the state traffic safety director–81 fewer deaths than in 2008.  Nevada State authorities attribute the lower accident related deaths to better law enforcement and more laws to enforce.   While certainly this may be the only thing that can be actually analyzed in a quantifiable measure, the drop and continued drop of deaths likely has many other factors besides new laws.   Nevada deaths peaked with 431 total deaths in 2006—up from 381 deaths in 2002—a sea saw of statistics.  The State’s rationale can’t be correct.  In all likelihood, we had more traffic laws legislated from 2002 to 2006 yet we had an increase of deaths; so how does one truly explain the numbers?  You can’t.   Here is why.

The other factors that must be considered are:  population increases/decreases, population of drivers increasing, types of cars driven from 2002 to 2009 (SUV’s, airbag equipped vehicles, etc.), the economy (causing less total drivers on the road), the number of new freeways e.g. I-215 (adding to less traffic collisions as a percentage of total cars-less risks as no center dividers and cross traffic issues), etc.  Nevada still has not implemented laws prohibiting people from texting while driving, nor have they implemented laws to stop cell phone use while driving —yet we have an increase of both of those activities, yet a drop in deaths; in addition, our speeding has increased.  Most speed limits are now 65 mph with highway speeds allowing for 75 mph in certain rural areas.  In California, the death rate dropped when they increased the speed limits in 1998 when compared to 2002 when they calculated an increase from 55 to 65 mph with more drivers on the road—confused?  You should be.  What is really saving lives?  More laws?  Not likely.  Who really knows except to think car safety has improved dramatically—and a little luck.  Perhaps we are just luckier this year.   If next year traffic deaths increase what will we say caused it?