I am always bothered when looking at my Facebook “newsfeed” when I see a client of mine talking about an accident that they were recently in. The best advice I can give to anybody injured in an automobile accident or any other accident is not to post at all, and if you have already posted, to take it down as soon as possible. In the context of motor vehicle accidents, and other personal injury claims, it is absolutely true that “anything you say can and will be used against you”. In fact, the insurance companies now have specialized units that scour social media for relevant posts by personal injury claimants. Unfortunately, most social media posts are intended to be reassuring to friends and family, and thus are wonderful ammunition for insurance companies.
By way of example, I had a client come to see me, who was a passenger in a one-car accident. His wife was the driver. It was actually a pretty serious accident, and he did go by ambulance to the emergency room. He was also one of my Facebook friends. He came to my office and asked me if I thought that there was a claim to be had. I told him that I was not so sure because he had already posted on Facebook a statement to his wife that “it was not your fault” and that “you did nothing wrong”. I understand that “fault” and “wrong” have different meanings in different contexts. In his case, he is trying to reassure his distraught wife. He is not saying that she exercised reasonable care in the operation of the motor vehicle under the circumstances. He is certainly not commenting upon whether or not she actually adhered to the speed limit; maintained an appropriate distance from other vehicles on the road; maintained a proper lookout, or maintained a speed reasonable under the circumstances and conditions of the roadway at that time. He is a husband comforting a wife, but we all know what the insurance company is going to do with those statements.
Similarly, I have not seen a Facebook post yet in which somebody was posting from the emergency room (already something which a lot of people will find a little odd, even though it happens all the time) to say that they got into some manner of an accident without adding something that says that they are “alright”, that they are “fine”, or that they are “okay”. Here again, what the people are trying to do is to reassure their friends and family that they are going to be okay. They are not dying. They are not brain damaged and they do not have limbs dangling from their bodies by a thread. They do not mean that they are not in pain. They do not mean that they are not injured. They certainly do not mean that there is no reason for them to be at the emergency room. Recently, a Facebook friend of mine put up a post saying that she was at the emergency room, and that she was okay. She left the emergency room in a cast and with a prescription for Vicodin. Her car was destroyed. She was happy to be alive. However, she was not “okay” in a technical legal sense. She had significant injuries that arose from this car accident. Nevertheless, the insurance company is now armed with statements from her which indicate that things were not really so bad. Things are relative. Compared to death, brain damage, broken bones and other permanent conditions, her condition is not so bad. Compared to her condition five minutes before the accident, her condition is quite horrible. Since the relevant comparison is to her pre-accident condition, and not to what could have been, the fact that things could have been much worse is irrelevant. Certainly, she could find comfort in the fact that it could have been much worse, and she could even describe herself “lucky”. However, the fact that she could have died does not diminish in any way what actually happened to her. However, do not expect an insurance adjuster to see it that way. If the case should go to trial, then this is one more thing that needs to be explained to a jury. As such, people who post make their lawyer’s job that much more difficult.
Another issue that arises is injured people posting pictures of them engaged in physical activity. Sometimes these pictures were taken before the accident, but that is not apparent. However, sometimes it is simply a matter that the person is not dead, merely injured. As such, there are things that they can do, at least for brief periods of time, or there are things that can do, only they now experience pain when they do it. I once had an insurance investigator get all excited about a picture of my client holding his two year old son (I explained to this investigator who I knew had no children that he obviously did not understand the concept of a father’s love). While the activity might not consistent with the nature and extent of the injury, it does gift wrap for the insurance company some evidence that helps them make a claim that the injury was not so serious.
There are exceedingly rare occasions when a social media post could be helpful. For example, it is not uncommon when people are injured in accidents to wait a couple of days before seeing a doctor. They will take aspirin (or a couple of shots) and hope that the pain will go away by itself. When they finally go to the doctor, the insurance company will argue that any pain was insignificant or else they would have gone to the doctor sooner. Sometimes, people will wait a week or two before going to the doctor, especially if they do not have insurance themselves and do not understand the no-fault system. In these kinds of situations, the insurance company may argue that they were not injured by the accident at all, but instead were injured in some other way during the week or two in between. This happens a lot in the area of slip and fall because there is no no-fault for slip and fall injuries. Also with slip and fall, there is often an issue of embarrassment. What is more, the injuries that you get from a slip and fall accident are the same injuries that you may get from tripping over your own shoelace, from playing sports or even at work. In these situations, a timely post stating that ‘I was just in an accident and I am really sore’, might be useful to rebut some of these insurance arguments. However, we are getting into a fairly technical area of evidence law. Depending on the insurance company’s argument, the statement might not be all that helpful. The better course is to go see your doctor right away and leave Facebook and other social media out of it.
Even on the Plaintiff side, there are certain opportunities that come from Facebook. I had an accident case once where my client was a passenger in a car that did not appear to have very much damage on it. Since it was not his car, he did not have it repaired, so hidden damage which is usually found when a car is taken to a registered shop (I have written a blog on the importance of registered shops) was not found in his case. What is more, the at fault driver did not have collision coverage on his car, so his insurance company never took pictures. The at fault driver testified that there was no damage to his car. However, he put a brand new front end on his car right after the accident, which he could not resist putting up on Facebook. The insurance company had been denying liability claiming that since there was no property damage, there could not have been the injuries that my client claimed. After seeing the Facebook posts, the case settled.