With the explosive rise in the use of social media, particularly facebook and twitter, there has arisen a potential minefield for plaintiffs or their friends who, after being injured in an accident, without thinking, post pictures and comments about their social life. Unfortunately these posts often show the plaintiff partying, drinking, on vacation or involved in physical activity that deeply undermines the plaintiffs personal injury claim.
Insurance companies and their defense attorneys most certainly have not forgotten the adage that “a picture is worth a thousand words”, and frequently will attempt to gain access to an injured persons facebook page or twitter account to gain as much harmful information as they can to “shoot down” the plaintiffs damages and claims for pain and suffering. There can be nothing more ruinous to a plaintiffs personal injury claim than a dozen pictures of the plaintiff and her friends a year after the accident partying at her sorority with a Budweiser in one hand and a cigarette in the other attempting to limbo. Trust me it happened in a case that Brian Cunha & Associates handled several years ago. In that case, the female plaintiff,19, from Newport Rhode island, was a passenger in a car driven by her boyfriend on Route 24 in Fall River Massachusetts. The boyfriend lost control of the car, claiming that a phantom vehicle that had entered the roadway from a side entrance ramp and cut him off. The car flipped over several times resulting in the plaintiff suffering 11 fractured vertebrae in her back, numerous cuts and surgery. The plaintiffs doctor opined and the plaintiff testified that she had sustained an injury that caused her a permanent disability, which most certainly was true, however, faced with the photographs the judge was entertaining a motion by the defense to strike our experts opinion regarding disability. In what was very good case for the plaintiff suddenly turned into a potential disaster. Based on the disastrous photographs and the potential that the judge would refuse to allow testimony from her treating doctor the plaintiffs’ case was settled for less than what she would have received without the harmful facebook photos and comments.
In a more recent case as reported this week in the New York law Journal the plaintiff’s
Carefree Twitter messages about traveling and partying held down damages awarded by a Gwinnett County State Court jury to a young woman who was injured in a car accident.
The jury returned a $237,000 verdict—apportioned down to $142,000—to plaintiff Omiesha Daniels. In the crash, Daniels, 22, broke her arm and incurred a forehead laceration that resulted in a scar. She claimed the injuries inhibited her ability to do her job as a hair stylist.
Defense attorney J. Robb Cruser said the posts from Daniels’ Twitter account showed the jury she had recovered from the accident and was living a full life.
“Twitter sunk her,” said Cruser of Cruser & Mitchell. “Those kinds of comments and that level of activity hurt the pain and suffering claim, even when she was saying she couldn’t work like she used to.”
The Twitter messages talked about an “epic weekend” in New Orleans and showed pictures of herself with friends at a beach for spring break, Cruser said.
Daniels wrote in one post, “I’m starting to love my scar,” and she had to explain how she was able to use her injured arm to carry a handbag that was pictured online, Cruser said. Daniels told the jury the handbag was lightweight.
The Twitter posts gave the jury the impression that Daniels wasn’t really injured, said her attorney, Michael Goldberg.
“There was nothing she posted that was different from what she said she could do, but with the jury we had, there was some concern that if they gave this girl a large reward, she was going to go out and party later. It’s not a hard argument to make to a very conservative jury.”
The all-white jury composition worked against Daniels, who is black, because jurors had a hard time relating to the difficulty of Daniels’ job, which included African-American hair braiding and weaving, Goldberg said. Daniels asserted that the accident reduced her ability to do her job because she suffered pain in her arm and had to ask for help from co-workers.
Prior to trial, Goldberg entered into a confidential high-low agreement with the defense that he said protected his client and precluded an appeal.
The apportioned judgment for Daniels was about $71,000 lower than the defense’s last pretrial offer of $212,500, Cruser said. The plaintiffs’ last demand was for $1 million.
The accident occurred June 6, 2011, when Daniels was a passenger in a 2004 Ford Taurus driven by her friend Kelvina Winbush as they were heading eastbound on Jimmy Carter Boulevard, according to the pretrial order and the accident report.
A 2008 Ford work van, driven by Atlanta Refrigeration Service Co. employee Jerry Garrett, was traveling in the opposite direction and turned left onto Regency Parkway. Winbush slammed on the brakes, skidded for about 50 feet and veered into the right lane before colliding with Garrett, who was cited for failure to yield.
An ambulance took Daniels to Gwinnett Medical Center, where she was treated for a broken right arm between the elbow and the shoulder, a concussion and a six- to eight-inch laceration on her forehead. Plates and screws were inserted in the arm to repair it, Cruser said.
Daniels alleged that American Refrigeration Service was negligent in hiring Garrett and entrusting him to drive a work van because he had received five speeding tickets in 2005 and 2006, as well as DUIs in 1988 and 1998. At the time of Garrett’s hiring in 2009, a three-year motor vehicle report showed no accidents or tickets, Cruser said.
The jury’s Dec. 14 verdict apportioned 60 percent of fault to the defendants and 40 percent to Winbush. The award barely covered Daniels’ $58,000 in medical expenses. In his closing, Goldberg asked for between $1.1 million and $1.3 million, including about $800,000 for pain and suffering, $300,000 in diminished earning capacity and the medical expenses.
Goldberg said he warned Daniels to be careful about what she put on the Internet. He said the most damaging tweets were quotes of lyrics to songs such as, “It’s my birthday and I’ll get drunk if I want to.”
“It seems like she’s very happy. The argument was basically that someone who’s that happy doesn’t need money for anything,” Goldberg said. “The implied argument was if you give her the money, she’s going to travel and blow it. For that jury that was the right argument to make.”
Attorney Brian Cunha, who has spoken to lawyers about social media, has told attorneys that they said should look at potential clients’ Twitter and Facebook postings. But telling clients to abstain from social media may not be realistic.
The lesson to be learned is that if your in an accident, other than remembering your mother on her birthday forget about telling the world about yourself via social media