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“How could you neither see nor hear an oncoming train?”

Monday, November 26, 2012
posted by Douglas Keene

A few years ago we worked on a case where a young mother and her pre-school daughter had attempted to cross the train tracks and were hit by an oncoming train. The mother was killed and her daughter was horribly and permanently injured.

Mock jurors questioned how she could simply not have seen nor heard the oncoming train. After these questions were raised, one of the jurors tentatively stated that she had had several near misses. After this admission, several others agreed they shared that frightening experience. The room was split.

The animations of what would have been visible from the driver’s vantage point were not of use to them (so they thought) since they “were not in the car with her” and did not know if she had been distracted by her child or perhaps by music playing in her vehicle.

It was before the research, now widely known, about inattentional blindness was publicized. We’ve written about that research, which is also known as the “invisible gorilla” research. When we are strongly focused on specific elements of our environment, we can be ‘blinded’ to other elements, even when they are objectively obvious or prominent. Now we have more research that says we may be experiencing the results of something beyond mere “inattention”–we may actually be blinded to other details by efforts to keep an image in memory. And it can apparently happen in a wide variety of situations–take for example, that ever-helpful GPS unit in your car.

GPS is a wonderful invention but apparently it can unintentionally impair your ability to perceive what you are looking at when you use it. You ‘look’, but do you ‘see’? Researchers recently examined the idea that when holding an image in memory, we are essentially “blind” to whatever object is currently in our line of vision. Nilli Lavie (one of the researchers) explains:

“An example of where this is relevant in the real world is when people are following directions on a satellite navigator [i.e., a GPS] while driving.

“Our research would suggest that focusing on remembering the directions we’ve just seen on the screen means that we’re more likely to fail to observe other hazards around us on the road, for example an approaching motorbike or a pedestrian on a crossing, even though we may be ‘looking’ at where we’re going.”

Participants in the study were given a visual memory task to complete while the researchers looked at the activity in their brains using functional magnetic resonance imaging. The findings revealed that while the participants were occupied with remembering an image they had just been shown, they failed to notice a flash of light that they were asked to detect, even though there was nothing else in their visual field at the time.

The participants could easily detect the flash of light when their mind was not loaded with the visual memory demands, suggesting that they had established a ‘load-induced blindness’. At the same time, the team observed that there was reduced activity in the area of the brain that processes incoming visual information – the primary visual cortex.

Professor Lavie adds: “The ‘blindness’ seems to be caused by a breakdown in visual messages getting to the brain at the earliest stage in the pathway of information flow, which means that while the eyes ‘see’ the object, the brain does not.”

In other words, when we are processing a lot of information (like when translating a computerized representation of a map to the real life scene before you)–we just can’t see that at which we appear to be looking. So–looking up from your vehicle’s GPS screen to view the real-life scene in front of you, means you may not see the pedestrian, the bicyclist, the dog, the man in that gorilla suit, or even–yes, that oncoming train.

The implications for litigation are problematic. Given the availability of this information studying human factors research (including product manufacturers), does this constitute a new area of warnings? Our work with focus groups on issues such as this suggest that jurors’ application of a ‘what would a reasonably careful driver do?’ analysis would still place the responsibility for attentional blindness on the driver. “She shouldn’t focus on anything that causes her to drive inattentively” is a common-sense reaction.

In the case of the train, what made a difference to the jurors was how the train approached at an oblique angle (somewhat behind the driver’s shoulder, rather than straight to the side), and the fact that there had been several deaths at this crossing in the years since the railroad had downgraded the crossing from active warning to passive warning (yes– there are always more details). But the bias represented by the sole fact of inattention by the driver was insurmountable for numerous jurors, especially when the unseen object is as big as a train. Testimony about how predictable this kind of oversight is would likely be of help to plaintiffs.

Konstantinou N, Bahrami B, Rees G, & Lavie N (2012). Visual Short-term Memory Load Reduces Retinotopic Cortex Response to Contrast. Journal of Cognitive Neuroscience, 24 (11), 2199-210 PMID: 22905823

***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***

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