ATV Safety: Size Matters

The popularity of ATVs has grown tremendously over the years, reaching 9.5 million vehicles in 2007. Accordingly, the rate of traumatic brain and spinal injuries resulting from ATV accidents has also risen, especially in children. Between 1982 and 2007, nearly 9000 riders died in ATV accidents and approximately 40% of them were children under age 16. Currently, ATV federal standards are lax, requiring manufacturers to limit speed capabilities for all youth-sized models. Recently, researchers recommended ATVs designed for children should have both size and weight limitations for riders. Confirming what may appear obvious, a recent study conducted by ER physicians and mechanical engineers, concluded that children, due to their size and weight, are at considerable risk of injury when operating an ATV. The researchers state: “mechanical differences and proportional safety risks that are present on adult-sized ATVs used by youth. Current child-sized ATV stratifications determined using regulated engine speed may not be enough to mitigate risks associated with the size and weight of these vehicles.”

According to auto safety experts at Safety Research & Standards Institute, the importation and sales of three-wheeled ATVs was banned in 2009 and the U.S. Consumer Product Safety Commission has required manufacturers to file and implement voluntary action plans. These plans include commitments to provide safety information and guidelines regarding the appropriate age for child and adult-sized machines. The manufacturers also consented to instruct dealers not to market adult machines to child riders and to monitor dealers under-cover to ensure that dealers are complying.

California’s ATV laws are also lax. The laws require riders to wear helmets and minors to be supervised by their parent/guardian or an authorized adult. The laws also restricts children from riding on public land unless the child rider is taking a safety training course; or riding while supervised by an adult who has a safety certificate. No California laws currently restrict the speed or size of the ATV a child may ride. Given the findings of the most current research, manufacturers should increase efforts to educate riders about the safety risks present when children ride adult-sized ATVs.
 

Howell v. Hamilton Meats: Questions & Answers

The California Supreme Court dealt the injured a serious blow in August when it handed down Howell v. Hamilton Meats and Provisions, Inc.  It is certainly one of the most pro-insurance company cases ever. 

Gary Simms and I collaborated on a couple of articles explaining how Howell will change the legal landscape in the years to come.  Gary Simms brings a unique perspective to the discussion.  Not only did he argue the case before the Supreme Court, but he spent nine years of his career as a senior judicial attorney writing the Court's opinions. 

Our latest article is Supreme Court Put Plaintiffs Through the Hamilton Meat Grinder.

Here are our views on some key issues.  See the article for how we get there:

Does Howell apply only when there is a contract between the plaintiff's medical providers and her insurer?

A: It seems so but the court's opinion is unclear.  Plaintiff has asked the court to clarify.

How does the defendant prove that there is a contract between the insurer and the provider?

A: Unclear but plaintiff should be able to argue that oral evidence doesn't suffice.

Who has the burden of proving what was paid or owing and what is reasonable?

A: Plaintiff will bear the initial burden of submitting evidence of the amounts paid or owing.  Evidence of reasonable value will not be sufficient.

Are billed charges relevant to noneconomic damages?

A: Generally not.

Are billed charges relevant to future medical expenses?

A: Defendants will certainly argue that they are not.  But that argument will be difficult to carry.

Is evidence of the amount paid by the insurer admissible?

A: Yes.

How is the amount paid or owing to be determined?

A: Unclear.

Do HMO patients recover no medical expenses?

A: The opinion isn't clear.

Do malpractice victims recover nothing?

A: The opinion isn't clear.

Is evidence of medical insurance now admissible?

A: As a practical matter, yes.

Can Howell be dealt with by post-trial motion?

A: Unlikely that a defendant would so agree.

 

Howell v. Hamilton Meats & Provisions, Inc.