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-By the Jacksonville Car and Trucking Accident Lawyers at The Lawrence Law Group

The National Highway Traffic Safety Administration recently published motor vehicle accident data compiled for 2018.  The report reflects that traffic fatalities in the United States decreased by 2.4% from 2017.  More good news: fatal drunk driving accidents in Florida dropped by 3%.   While these figures reflect some recent improvement, we have a long way to go towards increasing traffic safety.

In 2018, 36,560 people were killed in motor vehicle accidents.  To put that in perspective, approximately 58,000 U.S. soldiers were killed in the twenty year war in Vietnam.  In Florida, 3,133 people died in traffic accidents in 2018.  A whopping 26% of those fatalities involved impaired drivers.

While nearly every category of vehicle accidents reflected a decrease in fatalities, fatal accidents involving semi trucks, eighteen wheelers and other large trucks increased by nearly 1%, fatal accidents with pedestrians increased by 3.4%, and fatal accidents with bicyclists increased by 6.3%.  No explanation was provided for the precipitous increase in pedestrian and bicycle accidents.

For the last 40 years, traffic fatalities in the United States have steadily fallen.  Credit for the decrease is attributed to: the manufacture of safer vehicles including the use of airbags; the increased use of seat belts; and enforcement efforts to decrease driving under the influence.

Almost half of traffic fatalities involved persons who were not wearing seat belts despite the fact that approximately 90% of vehicle occupants do wear seat belts.   This extremely disproportionate number of fatalities for unrestrained drivers highlight the effectiveness of seat belts.  In other words, if seat belts were not effective, it would be expected that roughly 90% of traffic fatalities involved seatbelted occupants instead of only 54%.

Several measures can be taken to further decrease traffic fatalities including: 1. increasing the awareness of the effectiveness of seat belts; 2. decreasing distracted driving, especially cell phone use, texting and social media use; and 3. increasing the enforcement of impaired driving laws.  The day will come when we look back at the carnage on our roadways and wonder how we put up with it.  That day cannot come soon enough.

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Two certified nurse assistants working at the Macclenny Nursing and Rehab Center were arrested this week on charges of physically abusing a resident.  More specifically, the CNAs were accused of forcefully pushing the resident into her bed, pulling her up by a shirt wrapped around her neck, throwing her into a wheelchair and slapping her.  The resident is 85 years old, blind and suffering from a spinal injury.  The incident was captured on surveillance video footage.  The CNAs were fired.

Macclenny Nursing and Rehab Center is rated two out of five stars by the Centers for Medicaid and Medicare Services, which is considered “below average.”  It received only one star for “health inspections.”  Macclenny is located one county to the west of Jacksonville’s Duval County.  CMS’ website is located at www.medicare.gov/nursinghomecompare.

Video footage is much more common today than in the past and it is greatly changing how we perceive claims of abuse, whether it occurs in the context of nursing home care or the degree of forced used by law enforcement.  This is a very good thing. Our Jacksonville nursing home injury lawyers routinely investigate and prosecute nursing home abuse and neglect cases; however, unless there is video footage, situations in which intentional assault by nursing home staff can be proven is very rare.

When there is no footage of the actual abuse, these cases rarely see the light of day.  Often, the victims of abuse suffer from cognitive decline and make poor historians.  They may forget the abuse occurred or otherwise be unable to express themselves in a clear manner.  Of course, video footage changes all of this.

While it has not been reported how the video footage in this case was obtained, we have seen an increase in family members, who are suspicious of abuse, putting “nanny cams” in a resident’s room to catch an abuser.  News stories across the country reflect many instances of assault by nursing home staff being caught by hidden cameras.

When handling nursing home abuse cases, it is very important that an attorney investigate the hiring process used by the operators of the nursing home to determine the suitability of the candidate.  While criminal background checks are almost always done, is is common that contact to prior employers is not done.  When we contact those prior employers, we may learn of previous conduct on the part of the employee that would have been disqualifying had the nursing home performed its due diligence.

In addition, it is important to review other complaints of abuse against the same employees.  We often find that claims of abuse are not taken seriously by nursing home operators.  The failure to fully investigate prior allegations of abuse can lead to damning evidence against the managers and operators of the nursing home.

Macclenny Nursing and Rehab Center is a 120 bed nursing home operated by the Sovereign Healthcare Holdings, Inc., which manages 28 nursing homes in Florida and Georgia.  In the Northeast Florida area, Sovereign operates the following nursing homes: Jacksonville Nursing and Rehab Center located at 4134 Dunn Avenue Jacksonville;  Macclenny Nursing And Rehab Center located at 755 S 5th St, Macclenny; and Moultrie Creek Nursing And Rehab Center located at 200 Mariner Health Way in Saint Augustine.

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It is a common saying that a picture is worth a thousand words.  This saying is all the more true when trying to convey to a jury the pain and difficulty posed by various medical procedures.  Taking it a step further, if a picture is worth a thousand words, then video footage is worth an entire book.

Some people are “visual learners” meaning that they retain information best when they can view it.  For these people, a verbal explanation of injuries and medical procedures will have very little effect.  Other people learn by hearing information presented to them verbally.  Almost all people, however, learn most effectively when exposed to both verbal and visual information.

As Jacksonville injury lawyers, we have represented a multitude of clients who require pain management procedures.  Usually these cases involve injuries to the cervical or lumbar spine.  The pain management procedures include: epidural steroidal injections into the spine; nerve blocks; facet joint injections; and radiofrequency ablations.

If these procedures were described to you, they would certainly sound unpleasant; however, if I show you video footage of an epidural or radiofrequency ablation, you would probably cringe and wince.  In short, video footage of an invasive procedure makes a viewer feel something, whereas a description simply does not.

Florida has a prohibition on “golden rule” arguments at trial.  This means that a personal injury attorney cannot ask jurors to consider how  they would feel if they hand to endure the pain and medical procedures at issue.  Showing a video; however, is allowed, and the viewers cannot help but get a feeling of what it is like to endure these invasive procedures.

Because of this, when we have cases headed for trial, we make sure to have these types of procedures videotaped.  This, of course, takes coordination with the client’s pain management doctor and a videographer experienced in capturing the procedure without interfering with the doctor.  Finally, the video footage is shown at trial with the pain management doctor on the stand narrating the jury through the procedure steps.

Furthermore, using video footage of pain management procedures also helps to validate a person is genuinely suffering from severe pain.  These procedures are not simple and painless.  For example, an epidural steroid injection is inserted into the spinal canal and causes pain during and after the procedure, not to mention the serious side effects.  Is is hard to imagine someone would volunteer for such an invasive procedure if he or she was not in serious pain.

If you are in need of an injury lawyer in the Jacksonville area, we are happy to answer any questions about how we can demonstrate the full extent of your injuries to a jury, judge and mediator.

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As Jacksonville car accident lawyers, we see our fair share of  personal injury claims in which the insurer for the at-fault driver refuses to make a fair settlement offer.  A recent case we resolved highlights the consequences an insurer faces if the injured person’s attorney has the experience to set the foundation for a bad faith claim.

Our client suffered two herniated discs due to a head on, high impact, car crash in Jacksonville’s Arlington area.  Despite the severity of his injuries and his mounting medical bills, he gave the at-fault driver’s insurer the opportunity obtain a complete release of liability in his favor in exchange for payment of his minimal $25,000.00 bodily injury policy limit.  Instead, the insurer offered $9,000.00.  We stopped all negotiations and filed suit.  After years of litigation, the insurer agreed to pay our client $600,000.00 based on its exposure for a bad faith claim.

A “third party” bad faith claim allows an injured person to recover more than an alt-fault driver’s insurance coverage from that person’s auto insurer in limited circumstances.  Perhaps the easiest way to understand this is to place yourself in the shoes of the at-fault driver.  Imagine for an unpleasant moment that you made a mistake while driving and caused someone to suffer a badly broken leg.  Let’s say you had the foresight to purchase bodily injury insurance coverage just in case something like this were to happen.

Next, the person with the broken leg contacts your insurer and offers to settle all claims against you for the payment of the $100,000.00 in coverage that you purchased.  You are relieved to know you will be off the hook because that person’s medical bills alone after surgery came to $75,000.00, not to mention his or her entitlement to future medical expenses, lost wages, pain and suffering and disability.

Instead of settling the case, your insurer decides to “roll the dice” hoping that a jury will look unfavorably on the injured person.  The jury comes back with a judgment for $1.2 million.  Your insurer now pays the $100,000.00 in coverage, leaving a judgment against you for $1.1 million.  The judgment prevents you from selling real property (from which it would be paid first), negatively affects your credit, exposes you to collection activities (wage garnishments, seizure of value personal property, garnishment of bank or asset accounts) and post-judgment discovery to investigate the status of your assets.

You would rightfully be angry at your own auto insurance company.  It could have secured a release in your favor from all liability at no cost to you.  Instead, you are now going to be hounded by a judgment for decades to come. In this situation, the law allows for the injured person to obtain an assignment of your right to sue your auto insurer for failing to act in good faith in protecting you from having a judgment entered against you.  In so doing, the injured person can pursue the full amount of the judgment he or she received.

When our Jacksonville car accident lawyers provide a demand to an insurance company, we take specific steps designed to preserve the client’s right to seek bad faith damages in the future if the insurer does not make a fair offer.  To do so requires experience as there many nuances to accomplish this including creating a compelling and complete documentation of the personal injuries involved, the effects of those injuries, and the resulting medical expenses and lost wages.

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On April 9, 2019, a 71 year old veteran died after being attacked while residing at the St. Augustine Health and Rehabilitation nursing home.  The man’s 84 year old roommate was found on top of him striking him in the face and head.  The man was rushed to Orange Park Hospital and then to another hospital in Jacksonville; however, tragically, he died from his injuries.

According to the St. Johns County Sheriff’s Office, the medical examiner confirmed the man died from the attack due to blunt force trauma.  His injuries included a fractured skull, broken bones and injuries to his eyes.  The death has been ruled a homicide.

The victim had suffered a stroke years before that left him bed bound and partially paralyzed rendering him essentially defenseless. The reason for the attack has not been disclosed; however, the mental health of the other resident is, of course, being considered.

Tragic incidents such as this are largely preventable as an assault with this degree of violence is rarely a nursing home resident’s first sign of aggressive behavior.  Rather, aggression may begin with verbal threats and progress to physical acts such as shoving or pushing.  It is necessary that this type of behavior be recognized by nursing home staff and dealt with immediately in order to keep the other nursing home residents safe.

Resident on resident assaults can happen in nursing homes and steps must be taken by the nursing home operators in an effort to prevent these types of incidents.  Many nursing home residents suffer from a degree of dementia.  Some people suffering from dementia become aggressive even though they were never aggressive before.  As such, it is very important that nurses and nurse assistants at nursing homes are always on the lookout for aggressive behavior on the part of any resident in order that responsive measures can be taken to protect the other residents.

For a lawyer handling a resident on resident assault case against a nursing home, it is important to obtain a complete clinical picture of the assailant’s behavior prior to the assault.  Next, the attorney must determine what steps, if any, the nursing home took in response to any previous instances of aggression on the part of the assailant.  In addition, it is important to look at the assailant’s criminal background and any history of aggressive behavior.   Finally, the nursing home’s policies and training must be reviewed to determine if employees were properly trained and instructed on: screening residents to determine who is inappropriate for a nursing home setting; identifying signs of aggressive behavior on the part of a resident; and responding to such aggression.

Of the nursing homes we investigate, most of the time we find that they are understaffed.  Because of this, CNAs and nurses do not have time needed to tend to each resident.  Actions that require additional time, such as responding to, or reporting, the first signs of aggression by a resident, can often be pushed to the side with devastating consequences.  In fact, in our experience, understaffing is the most common cause of nursing home neglect injuries and death.

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When a person is injured in a car accident in Florida, no matter who is at fault, that person’s own auto insurance pays 80% of his or her medical expenses and 60% of lost wages up to a combined total of $10,000.00.  This coverage is called “personal injury protection” or “PIP,” for short.  This amount of insurance can be expended quickly for a person suffering serious car accident injuries.

Currently, most medical providers are only allowed to charge set rates when billing under PIP insurance.  Those rates are set at twice the rates paid by Medicare for the same services as identified by billing codes.  This means that a medical provider gets paid twice as much for treating a person injured in auto accident as compared to treating a person with Medicare coverage.

This limitation on the rates that can be charged has proven to be fair.  The rates are high enough that skilled medical providers are willing to see people injured in auto accidents, but low enough that the patient can receive several months of care before PIP is exhausted.

However, hospitals and emergency care providers are not subject to these rate limits. Rather, hospital rates are set at a very vague standard of 75% of “usual and customary” charges.  “Usual” hospital billing, before adjustments are made, are typically inflated by much more than 100% over what the hospital would accept from a private insurer.  Essentially, the hospital never gets paid anywhere near the amount of its original billed amounts.  Seventy-five percent of such amounts still comes to about twice of what is a fair charge for the services at issue.

Florida’s House of Representatives has proposed changing this.  Florida’ House Health and Human Services Committee proposes to include hospital and emergency care providers in the manner as post-acute medical providers by limiting the charges to 200% of Medicare rates.

A few other changes are proposed.  Currently, a person injured in a car accident in Florida has 14 days to see a medical provider in order to be entitled to benefits under a PIP auto policy.  The House proposal includes extending that period to 30 days; however, a provider will be required to submit treatment plans to the auto insurance company.  If a treatment plan is not submitted, then the PIP insurer will not be obligated to pay that provider.

Since originally enacted in 1972, PIP coverage has proven to have benefits and costs.  It ensures that people hurt in car accidents have some access to coverage for their medical bills and lost wages.  However, it also requires that a person suffer a permanent injury in order to recover anything more than the portion of medical expenses and lost wages that remain unpaid after PIP has paid its majority share.

This “permanency” requirement may sound fair; however, it can be misused by auto insurers.  In nearly every auto accident injury case we handle, once suit is filed, the insurer requires our client be seen by a doctor chosen the the insurance company.  There are four or five doctors here in the Jacksonville area that we see time and time again.  These doctors make hundreds of thousands of dollars per year doing these reviews and uniformly minimize clients injuries and often claim the client was never injured at all.

Sometimes, jurors agree with the insurance company’s doctor – meaning that a person injured in an accident may not only be denied compensation for pain and suffering, but might actually end up owing the insurance company for its expenses, and sometimes attorney fees, simply because a hired gun doctor claimed the person was not really injured.

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Ten days ago, tragedy struck when a Jacksonville woman driving south on US 17 in Fleming Island was struck by a tractor trailer.  After being struck, the woman’s vehicle left the highway and impacted a support piling for the pedestrian walkway that spans from Pace Island to Black Creek.

The driver of the semi truck left the scene of the collision.  He was later pulled over by a Clay County Sheriff’s deputy who witnessed the collision.  The driver was arrested for leaving the scene of a crash resulting in a fatality.  The semi driver claimed he was unaware that the collision even happened.  Florida Highway Patrol relays that the semi driver was changing into the woman’s lane when the collision occurred.

Given the manner in which this collision occurred, it may have been due to the car being located in the driver’s blind spot.  The woman’s car was to the right of the semi driver and next to his trailer.  This puts the car in the classic location of a blind spot for the truck driver.

Due to the size of a tractor trailer, there are significant blind spots.  The height of the tractor adds to the problem as the driver and the mirrors make seeing a small car that is next,  and close, to the tractor on its right side very hard to see.

In order to prevent these types of collisions, defensive driving is a must.

In 1994, the Federal Motor Carrier Safety Administration (FMCSA) established a program related identifying “no zones” to educate the public on safely sharing the road with large commercial vehicles.  “No zones” are areas to avoid as they present blind spots where truck drivers may have a difficult time seeing you.   Advice for avoiding “no zones” includes:

-do not linger on the side of a semi truck, especially the right side, either speed up or slow down to get yourself away from a blind spot;

-when passing a semi truck, pass on the left side, again due to the larger blind spot on the right side of the truck; and

-stay far behind a semi truck as they cannot easily see you, semi trucks do not have rear view mirrors (as all that semi drivers would see in a rear view mirror is their trailers).

For their part, truck drivers switching lanes to their right also have a protocol for safety.  First, they are advised to signal lane changes at least five seconds in advance of their turn.  Next, they are to check their mirrors and to use a fender mounted mirror to provide maximum visibility.  Before turning, the driver must lean forward and over to look into the blind spot to make sure there are no cars in their right side blind spot.

Finally, truck drivers are advised to allow six seconds between the truck and the nearest vehicle they are following.  In this manner, the driver can safely stop and does not have to perform a sudden lane change to avoid rear ending another vehicle.  Such a sudden lane change usually does not allow time for properly checking for vehicles in the blind spot.

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A licensed practical nurse working at Life Care Center of Orange Park nursing home was arrested this week for grand theft of a controlled substance.  The arrest came following an investigation into missing prescription painkillers.  Over one hundred hydrocodone and oxycodone pills were reported missing.

Life Care Centers operates hundreds of nursing homes in twenty-eight states.  In the Jacksonville area, it operates three nursing homes: Life Care Center of Jacksonville; Life Care Center at Wells Crossing (located in Orange Park); and Life Care Center of Orange Park.  These three nursing homes have received high rankings from the Centers for Medicare and Medicaid Services, respectively earning five stars, three stars and five stars on CMS’ one to five star rating system.  While certainly not an infallible measure of quality, our lawyers have noticed a strong correlation between the ranking system and the level of care provided.

Theft of prescription painkillers, or “drug diversion” as it is commonly called, at nursing homes is a nationwide problem.  The Controlled Substances Act of 1970 regulates narcotic pain medication. Nursing homes must maintain a Controlled Substances Log pursuant to  21 U.S.C. 827(a).  A Controlled Substances Log is used to track every dose of pain medication by recording the date and time the pill was obtained by a nurse, the name of the resident receiving the medication, the name of the nurse receiving the medication, and the name of the subscriber.  Pain medication must be kept in a separately locked cabinet in a secure area of the nursing home.

This level of documentation does not however, ensure that the nurse actually gives the pain medication to the resident.  Many residents of nursing homes suffer from a degree of confusion or dementia.  It is a simple enough task for a nurse to provide the resident an over the counter pain reliever while pocketing the actual narcotic.  Of course, such a practice is a clear violation of the nursing standard of care and a violation of the nursing home resident’s rights.

The effect on the defrauded nursing home resident is more than just having to temporarily endure needless pain.  The sudden cessation of regularly taken pain medication can cause serious withdrawal symptoms.  Further, unaddressed chronic pain causes a host of other problems including: depression; interruption of sleep; impaired cognitive function; compromised cardiovascular health; and decreased quality of life.

If you are concerned that a loved one is not receiving his or her pain medication, there are steps you can take.  First, we recommend a meeting with the resident’s doctor, the nursing home’s director of nursing and the resident’s unit manager to discuss the issue.   Second, a urinalysis can be performed to determine the amount of pain medication the person has metabolized.  Lastly, we always recommend that anyone concerned about nursing home neglect or abuse contact Florida’s Department of Children and Families abuse hotline at 1-800-96-ABUSE. Continue reading

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Under intense lobbying by the nursing home industry in 2001, the Florida legislature enacted legislation requiring a pre-suit investigative and notice period before a lawsuit could be filed seeking compensation for death or injury caused by nursing home neglect.  At first glance, the pre-suit requirements may have seemed like a good thing.

Before filing suit, a claimant must have the matter reviewed by a doctor or registered nurse expert.  If the expert comes to the conclusion that the nursing home did something wrong that caused harm to the resident, the case can progress.  After that, the parties are to engage in a 75 day period during which they are to exchange information.  Finally, the parties are required to mediate before suit can be filed.

The problem is that the statute provides no repercussions if a nursing home refuses to provide information and refuses to mediate – and, as a result, that is exactly what the nursing homes do.  In litigating nursing home injury and death claims for more than 10 years in Jacksonville, we have had only one nursing home willing to engage in the statutorily “required” pre-suit mediation.

The truth is that the pre-suit process provides no benefit whatsoever to injured residents.  Instead, it greatly increases the cost and length of time it takes to seek compensation.  Meanwhile, the nursing homes reap huge benefits from this process at no cost.

Florida Statute § 400.0233 requires that the claimant’s attorney conduct a good faith investigation.  To do so, the attorney must have the nursing home’s records for the client in question.  This is where the delay starts –  nursing homes are provided 30 “working days” to produce the records of a former resident.  Given weekends, this allows a nursing home approximately 40 days to simply make a copy of the records.

The lawyer must then review the records to determine what happened.  The records are not easy to read and typically involve hundreds of pages.  In short, the lawyer is working backwards to determine if the injury, illness or death could have been prevented.  To do so, we are scouring the record for signs and symptoms of the impending illness or incident along with any responses made by nursing home staff to prevent the injury or illness.

If the lawyer believes that the nursing home operator was neglectful or abusive, and, in so doing, caused serious harm or death, the statute requires the records be reviewed by a physician or registered nurse.  This is  expensive as a reviewing doctor or R.N. is going to charge expert witness fees on an hourly basis to review all of the pertinent records, typically including those from a receiving hospital.

If the expert comes to the conclusion that the nursing home was negligent or abusive, then a pre-suit notice must be sent by certified mail to every “prospective defendant.”  It can be difficult to determine who the prospective defendants are as nursing homes in Florida are typically operated by a maze of related limited liability companies.  This is purposefully done by nursing home operators in attempt to shield themselves from liability and to avoid transparency regarding their profits.

The statute allows for the parties to request documents and take statements from witnesses.   However, the nursing home operators refuse to comply with these requests.   They get away with this because Florida’s statutes on nursing home claims (unlike the medical malpractice statutes) provide no consequences for the nursing home’s refusal to comply with the statute.

After service of the pre-suit notice, nursing home operators have 75 days to review the claim.  At the end of this period, the operators, or their insurers, are supposed to provide a response either rejecting the claim or making a settlement offer.   The nursing homes almost never do  this as a failure to respond is considered the same as a rejection.

After the 75 day period expires, the statute requires that the parties mediate the case.   This provision is almost uniformly ignored by the nursing homes, and, again, it is because the statute provides no consequence for failing to do so.

In summary, throughout the entire statutory pre-suit process, the nursing home operators do essentially nothing and the injured victim spends an extraordinary amount of time and money for no reason.  The delay alone is a major injustice as victims of nursing home abuse and neglect tend to be elderly or infirm.  Further, after months of this needless delay, nursing home staff  members are no longer as able to recall all of the facts surrounding the resident’s situation.

All of the benefits supposedly provided by the statute – information sharing and an early mediation – are erased by a statute that contains no teeth.   It is time for the statute to be repealed. Continue reading

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The year on Jacksonville’s roadways has gotten off to a dangerous start.  To date this year, forty-nine people have died in traffic accidents in Jacksonville, according to the Jacksonville Sheriff’s Office.  This is thirteen more deaths than the average for this point in the year and the trend only seems like it will continue.  In separate incidents, two pedestrians were struck yesterday, one of whom was a woman who was killed while trying to cross 103rd Street on Jacksonville’s westside.

Pedestrian traffic fatalities are on the rise.  According to the Jacksonville Sheriff’s Office, there have been an average of thirty-nine pedestrian deaths per year during the last five years and roughly one in four traffic deaths in the city involve a pedestrian.

Jacksonville is not known to be a particularly pedestrian friendly city.  In fact, for the year of 2016, Jacksonville was rated as the fourth worst city in the country for pedestrian danger according to the National Complete Streets Coalition.  Many busy roadways in Jacksonville have no sidewalks, many roads are poorly lit, busy intersections have no crosswalks, crosswalks that do exist often do no provide enough time for slower walkers to get across and pedestrians and drivers often fail to pay attention.

The Florida Highway Patrol has designated April as “Distracted Driving Awareness Month”; however, the blame does not rest solely on drivers.  Pedestrians are becoming increasingly distracted by cellphones as they walk.  Texting, social media and surfing the net all play a role in “distracted walking,” which can be deadly.

There are things pedestrians can do to avoid being involved in an accident with a vehicle, including:

-wear brightly colored clothing at night;

-carry a flashlight at night;

-do not step out from beside a parked car or hedge when crossing the street;

-cross only at designated crosswalks;

-look left, then right, then left again before crossing;

-do not allow yourself to be distracted when crossing;

-walk on sidewalks when available;

-even if you have a “walk” signal at a crosswalk, make sure that drivers are stopped or coming to a stop;

– do not wear headphones while crossing the roadway;

– do not walk near roadways while intoxicated; and

– if there are no sidewalks, walk facing traffic.

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