Sometimes in a car accident case it is not clear who is responsible for causing the crash and the drivers involved may blame each other. We often get calls from clients and they tell us the facts of how the crash occurred, but when we talk to the insurance company for the opposing driver, they have a different story. Unless there is video from a dash-cam or other nearby camera, or an independent eyewitness, these cases can often turn into a “he said, she said” situation. In these scenarios, you are left with a couple of options: (1) You can take your chances and hope that your story is more credible than the opposing driver, (2) you can hire an accident reconstructionist who can try and reconstruct the scene from the damage profiles of the vehicles and the physical clues at the scene of the crash, or (3) you can download the data from the EDR of both vehicles and get a pretty good picture of what was happening with the vehicles before the crash. Option one is risky, and option two is very expensive. Sometimes gathering data from the EDRs of the vehicles involved in the crash is all you need to present a clear picture of liability.
EDR stands for “event data recorder.” Early iterations of these devices began showing up in vehicles in the 1970s. More and more manufacturers incorporated some form of an EDR into their vehicle over the next few decades and by 2005 over 60% of all new model vehicles had some ability to record crash data. The EDRs were initially installed to provide manufacturers and government agencies with more data to understand crash events so that safety systems could be tailored and enhanced to save more lives. There were problems though. Different auto manufacturers collected different data and used different systems, so retrieval of the data was very difficult. That is when the National Highway Traffic Safety Administration (NHTSA) stepped in and attempted to bring some uniformity to the data collected and the means of retrieval.
Although manufacturers are not required to install EDR devices into their vehicles, if they do, NHTSA has required that the devices collect certain data. For example, any voluntarily installed EDR must record the following data: (1) Vehicle speed; (2) Steering wheel angle; (3) Accelerator position; (4) Air bag deployment; (5) Seat belt use; and (6) Brake application. These are just a few of the data points that the EDR will capture. Also, most EDR devices record this information for up to five seconds before a crash. This data can be extremely useful in showing exactly how the car was being driven in the moments leading up to a crash. For instance, if you believe the other driver was speeding and not paying attention before the crash, you can use the EDR data to show the driver’s exact speed and you can calculate when the driver reacted prior to the crash by looking at the brake application. Sometimes experts can look at this data and make very good predictions about the other driver’s actions prior to the crash. The photo below is a sample of a crash data report showing some of the data prior to the crash:
As you can see, this portion of the data shows the speed of the vehicle, throttle use, brake use, engine rpms, and other information from 5 – 4.5 seconds before the crash. An attorney skilled in analyzing these reports can use this data to explain why another driver might be at fault for a collision.
Not every crash is captured by an EDR, however. Some crashes, such as side-swipe events, are not significant enough to trigger the recording mechanism for the EDR. Most EDRs will capture data during a significant frontal collision or in any crash when the airbags deploy. However, smaller accidents where there is not a significant amount of property damage to the vehicle may not create a recorded event.
A big advantage of EDR data is that it is relatively inexpensive to obtain. There are individuals and companies that will download the data for anywhere between $400 - $1,200 depending on the vehicle involved. Compare this to hiring an expert to reconstruct the accident which will typically cost at least $5,000 - $10,000 or more. Also, the data is really indisputable. It would be very rare for an EDR to record data that was inaccurate.
One hurdle you may have in obtaining the EDR data from the other vehicle during the pre-suit process is that the data is protected by privacy laws. The Driver Privacy Act of 2015 explicitly states that “Any data retained by an event data recorder . . . is the property of the owner, or, in the case of a leased vehicle, the lessee of the motor vehicle . . .” This means that in a civil case, unless the other driver involved in the collision consents, you cannot force them to allow you to access the data before filing a lawsuit. There is a provision in the Act that permits retrieval pursuant to a court order. This means that if you have a case where you are concerned about the disappearance of the data and the other driver will not permit you to download the data pre-suit, you should file suit early and obtain a court order to preserve the data. It may be critical in winning your case.
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At Flanagan & Bodenheimer, we are experienced in handling disputed liability cases where the EDR data plays a critical role. In one case, our attorneys used the EDR data to show the reckless conduct of a driver that resulted in a court permitting punitive damages. The case ultimately settled for more than $2.3 million. If you were injured in a car accident and you would like use to help you with your case, call us as soon as possible so we can analyze the case and make a determination about whether the EDR data should be obtained. If we believe it should be kept, we have experts throughout Florida standing by that can go to the location of the vehicle and download the data.