FairWarining Investigates

Bread, Milk and Mayhem

Storefront Crashes More Common Than You Think, and Often Preventable

Marisa Malin, 73, was killed in an April crash in front of Farrell’s Ice Cream Parlour, in Buena Park, Calif. Her 14-year-old granddaughter, Isabel Manalo, suffered two skull fractures.

Marisa Malin, 73, was killed in an April crash in front of Farrell’s Ice Cream Parlour, in Buena Park, Calif. Her 14-year-old granddaughter, Isabel Manalo, suffered two skull fractures.

Just as Kimmy Dubuque was about to enter a Cumberland Farms convenience store to get a cup of coffee, she was struck and killed by an SUV. Police said the SUV, driven by an 81-year-old man who suffered a stroke, had sped through the parking lot of the Chicopee, Mass., store and smashed into the front, pushing Dubuque, 43, through a wall.

Although storefront crashes such as the one that took Dubuque’s life in November 2010 may seem like freak accidents, they are more common than many people think. Just last month, 10 people were hurt, including a 5-year-old girl who suffered serious head injuries, when an SUV slammed into a Little Caesars Pizza shop in Los Angeles.

Cumberland Farms, one of the nation’s biggest privately held businesses, alone had 485 “car strikes’’ from 2000 through 2009 at its 500-plus East Coast convenience stores, according to records in a pending lawsuit. Likewise, 7-Eleven once disclosed having more than 1,500 incidents over a seven-year period. In recent years, crashes on store property also have occurred repeatedly at other big-name retail chains such as Starbucks and Dunkin’ Donuts.

Many safety experts say that for a modest cost — often $10,000 or less — barriers can be installed that give customers, employees and pedestrians substantial protection from vehicles that otherwise might jump a curb and careen into a store. In fact, barriers known as bollards, posts typically made of steel and often filled with concrete, already are a familiar sight beside vulnerable sections of shopping centers and government buildings. Still, safety specialists and plaintiffs lawyers say some big chains and other businesses, as well as shopping center owners, have done too little to reduce the risks.

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“We don’t need cars driving into fronts of stores and sidewalk cafes,” said Dean Alberson, a research engineer at the Texas A&M Transportation Institute and co-chair of a panel developing industry standards for bollards and other so-called low-speed vehicle barriers. “With a little bit of effort, we can actually really improve safety across the board,” while also preventing property damage from storefront crashes.

“We don’t need cars driving into fronts of stores and sidewalk cafes. With a little bit of effort, we can actually really improve safety across the board.”  Dean Alberson, research engineer at the Texas A&M Transportation Institute

“We don’t need cars driving into fronts of stores and sidewalk cafes. With a little bit of effort, we can actually really improve safety across the board.”Dean Alberson, research engineer at the Texas A&M Transportation Institute

Chris Davis, a Seattle lawyer who has represented several victims of storefront crashes over the past seven years, said bollards are “routinely seen to protect property, like around gas meters, but for some reason, when it comes to human life, business owners skimp, which doesn’t make sense.”

No federal agency keeps figures on such accidents. But a FairWarning review of news reports from early April 2013 through early April 2014 found that at least 16 customers, employees or other bystanders were killed in accidental crashes into store buildings or adjacent property. At least 587 others were hurt, 121 seriously, during the 12-month period. The figures are certainly an undercount, since not all of the accidents make the news.

Risk Grows as Boomers Age

Safety barriers wouldn’t prevent all of the deaths and injuries, and they aren’t practical to install at every spot where a crash conceivably could take place. Nonetheless, advocates say, the need for barriers is getting more urgent. “As our population changes and baby boomers get older, as a greater percentage are taking prescription drugs and with the use of cell phones, this is much more likely to happen,” said Scott Cannon, a lawyer for the family of a married couple killed in a storefront crash in Amherst, N.Y., a suburb of Buffalo.

In that September, 2011 tragedy, a driver jumped the curb while trying to park at a Cheeburger Cheeburger restaurant, a Florida-based chain with outlets extending from the East Coast to Nevada. Her van plunged into the restaurant, killing Kathryn Bennett, 52, and her husband, Joseph, 56, who were eating at a table with their 13-year-old son, Matthew.

The accident followed the pattern of many storefront crashes. For instance, the driver was older, age 76. She pulled into a parking space facing the restaurant, a configuration known as nose-in or head-in parking, and evidence reviewed by investigators suggested that she accidentally hit the pedal instead of the brake. Police cited her for driving at a speed “not reasonable and prudent,” and said “driver inattention” contributed to the crash.

In their pending suit against Cheeburger Cheeburger and related parties, including the property owner, the Bennett family claims the defendants were negligent because the site had nose-in parking, but no barriers. “It was a disaster waiting to happen,” Cannon said.

Kenneth A. Krajewski, a lawyer for Cheeburger Cheeburger, said he wasn’t authorized to discuss the suit, and officials at the company’s headquarters failed to respond to phone calls and emails seeking comment.

Accident last month at a Little Caesars Pizza shop in Los Angles that hurt 10 people. (Photo by Michael Meadows)

Accident last month at a Little Caesars Pizza shop in Los Angles that hurt 10 people. (Photo by Michael Meadows)

Far Off the Radar

In the absence of government data on the frequency of the crashes, few communities have adopted laws requiring safety barriers. One of the rare exceptions is Miami-Dade County, which is requiring “anti-ram” fixtures at some nose-in parking sites. The only advocacy group pushing hard for action is the two-year-old Storefront Safety Council. It was co-founded by Mark Wright, a free-lance writer from Rockville, Md., who was struck by a car while pushing open the door at a local 7-Eleven. He ended up with a badly injured knee that required two surgeries and months of recuperation, including stays in two nursing homes. While he was idled, Wright started investigating storefront crashes.

“It was so far off my radar – it wasn’t until my own encounter and subsequent research that I became much more attuned to the scope and severity of the problem,” Wright said. “It was such a useless and preventable accident.”

The main voice of the Storefront Safety Council is its other co-founder, Rob Reiter, a Pomona, Calif., safety consultant who says his clients include bollard manufacturers and who has served as a paid expert witness in suits brought by the families of storefront crash victims.

Although he tracks news stories about storefront crashes – and provided published accounts to FairWarning — Reiter maintains that the vast majority of the accidents are never publicly disclosed. Based on that assumption, he projects that there may be as many as 20,000 crashes into commercial and municipal buildings or adjacent property a year in the U.S. That figure often is quoted by plaintiff lawyers, but has been characterized as overblown by some experts.

March, 2011 crash at a 7-Eleven store in Midland, Texas (Photo by Roger Primera)

March, 2011 crash at a 7-Eleven store in Midland, Texas (Photo by Roger Primera)

“Drive-Throughs” at 7-Elevens

In any event, court documents confirm that big retail chains often are struck. In a case two decades ago, records from the 7-Eleven convenience store chain showed that it suffered more than 1,500 instances in 1990-1996 of vehicles jumping over the concrete aprons in front of stores.  In all, there were at least 30-odd employees, customers and pedestrians injured.

The accidents were so common that they were called “drive-throughs,” said Kevin M. Fox, a lawyer who in 1996 represented a 16-year-old boy who suffered a severe leg injury while going into a Babylon, N.Y., 7-Eleven for a Slurpee. The driver, who had been drinking, backed into a parking spot, decided to adjust by going forward, but then forgot to get out of reverse. She wound up backing into the building, pinning the teenager against a brick wall.

Still, Fox said, in that case and in others it has been hard to persuade juries to hold the property owner or retailer responsible. “To them, the problem was the drunk driver, not bollards,” he said, noting that the jury in his case found only the driver liable. Fox contends businesses could prevent many of the accidents by installing the barriers. “It’s a very simple solution to a very serious problem,” Fox said.

Officials at 7-Eleven did not respond to email or phone requests for comment. Neither did Starbucks. A representative of Dunkin’ Donuts was reached, but said the company would not reply to questions about storefront crashes.

However, the U.S. Postal Service, another one of the nation’s most-struck organizations, said through a spokesman that it has considered, and decided against, routinely installing bollards at its 30,000 branches around the country. The spokesman, Mark Saunders, said concerns including costs and access for people with disabilities “preclude the USPS from making changes to our existing design standards.” He said during the three years from fiscal 2011 through fiscal 2013, the number of crashes annually at post office branches declined, but there still were 592, leading to $1 million in repair costs.

End Nose-In Parking?

The Postal Service isn’t alone in its reluctance to embrace safety barriers. Some transportation and safety analysts point to other possible solutions. “The answer might be changing the design of cars, to make it more difficult for a foot to slip off the pedal,” said Todd Litman, a transportation consultant in Victoria, B.C.

Bollards were installed at Farrell’s Ice Cream Parlour, in Buena Park, Calif., after a fatal crash in April. (Photo by Stuart Silverstein)

Bollards were installed at Farrell’s Ice Cream Parlour, in Buena Park, Calif., after a fatal crash in April. (Photo by Stuart Silverstein)

J. Terrence Grisim, a safety management consultant in Elmhurst, Ill., contends that eliminating nose-in parking should be the main focus. “The biggest cause of accidents in retail stores is customers falling over things,” he said. “Some might fall over bollards.”

While bollard proponents also support eliminating nose-in parking, they argue that barriers are crucial. These advocates, led by Texas A&M’s Alberson and Reiter of the Storefront Safety Council, have labored the last several years to develop industry standards for low-speed vehicle barriers. They are working through the standards-setting group ASTM International, formerly known as the American Society for Testing and Materials. They said they expect final adoption of a voluntary industry standard in 2015, a development they hope will lead to broader use of safety barriers.

In some cases, establishments already are embracing the use of barriers to stop runaway vehicles. Increasingly, they are installing features such as specially made lampposts and large planters instead of conventional bollard posts that might look ugly or off-putting to shoppers.

Yet the failure of many major businesses to take safety measures has long puzzled Paul S. Weinberg, a lawyer representing Kimmy Dubuque’s husband, Albert, in a suit against Framingham, Mass.,-based Cumberland Farms.

$1.5 Million Settlement

Weinberg has reached settlements twice before with Cumberland Farms, which together with its subsidiary Gulf Oil, had sales of $17 billion last year. In one settlement, the company paid $1.5 million to a Vietnam War veteran who in 2001 lost most of his left leg in an accident at a store in South Deerfield, Mass.

The same South Deerfield store also had crashes in 1999 and again in 2004, which finally prompted the town building inspector to order the company to install bollards. Cumberland Farms’ long history of store crashes also includes the 1993 death of a high school student reportedly waiting by a pay phone outside of a Connecticut store.

Weinberg complains that, despite the troubled history, Cumberland Farms has dragged its feet. It didn’t launch an extensive effort to install bollards until 2011. Even then, according to depositions in the Dubuque case (here and here), about 250 to 300 stores – roughly half of the chain’s outlets — were excluded mainly because the program called for bollards to be installed only at the company’s most successful stores or at other locations that were being remodeled or that had been struck two or more times.

In addition, evidence shows that after determining that arrays of 6-inch-wide bollards could be installed at a per-store cost of $3,000 to $3,500, Cumberland Farms switched to narrower posts and thinner steel to save money. The bollards selected, Weinberg said, were “clearly inadequate to the task.”

A company spokesman, Derek Beckwith, declined to comment for this story, saying, “Cumberland Farms doesn’t make public statements about litigation as a matter of policy,” nor discusses “the different safety policies and programs that we have in place.” In a court filing, the company said the driver was “wholly liable for damages … because he lost control of his motor vehicle and drove it at a very high rate of speed.”

“I became educated on how often this happens every day in the U.S. I never thought about it before and now I see it everywhere.”  Victor Manalo, a city councilman in Artesia, Calif., who became an advocate for safety barriers after his mother-in-law was killed, and two of his children injured, in a parking lot accident.

“I became educated on how often this happens every day in the U.S. I never thought about it before and now I see it everywhere.”Victor Manalo, a city councilman in Artesia, Calif., who became an advocate for safety barriers after his mother-in-law was killed, and two of his children injured, in a parking lot accident.

“A Horrible, Horrible Thing”

Victor Manalo, a social worker, wishes bollards were in place the night this April when his mother-in-law, Marisa Malin, 73, took his three children for dinner at Farrell’s Ice Cream Parlour, in Buena Park, Calif. Malin was sitting near her grandchildren on a bench in front of Farrell’s, waiting for a table inside, when an elderly driver tried to pull his car out of a handicapped parking spot. The driver put the car in drive instead of reverse, and jumped the curb.

Malin was killed. Manalo’s 14-year-old daughter, Isabel, suffered two skull fractures; Amanda, 20, suffered two broken ankles; Jack, 11, was unharmed, but three other bystanders were injured.

For Manalo, who is also a councilman in the nearby city of Artesia, the tragedy was an eye-opener. “I became educated on how often this happens every day in the U.S.,” he said. “I never thought about it before and now I see it everywhere.”

He has proposed an ordinance for his city council to identify commercial developments that may need bollards. “The costs are minimal compared to what many developers spend,” he said. He also hopes to prod neighboring communities and the California Restaurant Association to encourage the installation of bollards.

His sentiments are shared by Mike Fleming, the chief executive of Farrell’s, which has seven locations in California. Fleming, who arrived at the site of the tragedy 20 minutes after the crash, said he was devastated by the accident.

“This greatly impacted the entire executive team,” Fleming said. “It was a horrible, horrible thing. I contacted our contractor and asked why we didn’t have anything to prevent this, and the contractor said it was not required. I said I want those bollards installed as soon as possible in each parking space” in the company’s location in Buena Park, which Fleming said was the only Farrell’s site with nose-in parking and inadequate barriers.

Ten were installed within a week for $8,400. “It’s not a huge expense,” Fleming said. In fact, the property damage at the restaurant came to more, about $10,000.

“It’s one of those things we read about, and say ‘it happened to them but it won’t happen to me,’” he said. “Marisa should not have lost her life and I don’t want another family, business owner, customer or employee to go through what we went through.” Fleming is now working with Manalo to promote the Artesia bollard ordinance, and he is thinking of pushing the issue at the state, and even the federal, level at some point.

“It’s not going to be popular with businesses – everyone hates regulations. There should be some sort of tax credits incentive to do it, but it needs to be done,” Fleming said. “If not, this is going to happen again and again and again.”

Robyn Murray contributed to this story.

KCBS-TV and KCAL-TV report on storefront crashes, Nov. 12, 2014

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6 comments to “Bread, Milk and Mayhem”

  1. Charlene McCarhy Blake

    Toyota and Lexus are #1 in cases of sudden unintended acceleration and FORD is #2. The current unintended acceleration plaguing newer vehicles is the electronically-induced type. The engine throttle control systems depend on computer software to command them. Sometimes glitches occur…like in some of your other electronic devices…which can cause the command to be different than what you desire. The evidence of the glitch is often undetectable after the vehicle is restarted. Unfortunately, the EDR (black box) is not always accurate as shown by expert Dr. Antony Anderson in his analysis of a 2012 Toyota Highlander. The EDR results indicated the driver was not braking when she was doing so. The EDR results are inconsistent.

    The key to avoiding a horrific crash during a SUA event is whether or not the vehicle has an effective fail-safe in the event a glitch occurs. If it does not, as in the case of the glitch-prone Toyota ETCS-i, then the vehicle may become a runaway with an ineffective means to stop it. Unfortunately, the safety standards aren’t as strict in automobiles as they are in airplanes. Some manufacturers have more effective fail-safes than others. In the case of Toyota, an embedded software expert, Michael Barr (see Oklahoma Bookout vs. Toyota court case involving a 2005 Camry) found that an electronic glitch could induce a SUA event. Another expert, Dr. Henning Leidecker, found that a SUA event could also be triggered by “tin whisker” formation, particularly in 2002-2006 Toyota Camry vehicles.

    SUA events have been DEADLY for vehicle occupants as well as pedestrians and people in storefronts, buildings, and even homes. The numbers of such crashes are ever-increasing with the advent of the very complex ELECTRONIC throttle control systems.

    With the increase in such serious vehicle crashes, there is a concerted effort to show driver “pedal misapplication” or a “medical condition” or some other reason for the incident…anything other than a vehicle defect. Investigators aren’t scrutinizing the buggy electronic throttle control software or other conditions that can elicit a terrifying sudden unintended acceleration incident. They usually just examine the *mechanical* causes which tend to be just red herrings in these cases. Investigators simply don’t have the expertise to find such electronic glitches. In fact, the staff at the NHTSA, National Highway Traffic Safety Administration, do not have this very specialized training!

    Think of it…the next step in electronically-controlled vehicles seems to be so-called “self-driving cars.” Do YOU want to be in a such a vehicle when there is no evidence that strict safety standards, particularly in the throttle control system’s software, have been adhered to? Will you just BLINDLY trust the automaker (criminally-investigated and nearly-prosecuted Toyota and soon-to-be GM and others?) to come through for you and your family’s safety *on its own*?

    A recently published Huffington Post article by Jonathan Handel,
    How Do We Know Driverless Cars Are Safe? Google Says ‘Trust Us’
    Posted: 07/01/2014 7:23 pm EDT Updated: 07/02/2014 1:48 pm EDT speaks to these very issues and poses tough questions about Google’s “driverless” vehicles. Educate yourself carefully before you put your faith in automakers who have knowingly lied to their customers and the government for decades. Study the issue of vehicle electronic sudden unintended acceleration and ask WHY we aren’t seeing it addressed publicly. WHY is blame placed on the driver with little more than speculation about which pedal was used or with little more than an assumption on medical condition. This is being done *even when the drivers steadfastly cite a VEHICLE PROBLEM as the cause of the crash. Absence of proof is not proof of absence of a serious ELECTRONIC computer glitch or other electronically-caused SUA.

    Charlene McCarthy Blake

  2. Charlene McCarhy Blake

    PR spin by automaker, law enforcement, and media in full force? Do they desperately desire the final report to say “pedal misapplication” in order to deflect from the ELECTRONICS of the computer-controlled throttle control system?

    Let’s see if the driver is hung out to dry publicly as so many have been in these crashes into storefronts, buildings, and homes. Jail time for drivers has been levied with nothing more than ruling out the mechanical causes. In cases of Toyota and Lexus, inconsistent and inaccurate EDR information has been used to falsely incriminate SUA crash victims. Character assassinations in the media prior to concrete evidence presentation seem to be the norm.

    Are automakers nervous that the truth will be revealed publicly? Why are so many of the articles about such SUA events lacking in pertinent details, like make, model, and model year? Why aren’t the exact words of the driver stated? Why is there usually immediate speculation that the driver pressed the wrong pedal? These late model vehicles are *computer-controlled*. Glitches occur often. Critical safety standards aren’t strictly regulated and fail-safes have been found to be ineffective by experts in the embedded software field.

    Think about how often you reboot your electronic devices. Have you considered that an electronically-driven vehicle has many of the same “glitch” issues? Are you erroneously assuming that your safety has been ensured by the auto manufacturer? Just know, the auto industry is not regulated like the airline industry. Educate yourself on this critical safety matter.

    The Car Wash Association knows the truth about sudden unintended acceleration in late model vehicles, particularly Chryslers. A FastStop Car Wash just admitted that there is a list of the most common vehicles to suddenly accelerate. After an employee was thrown from a Ford Expedition as it careened out-of-control from a car wash and into a power box on the side of a building, this information was revealed by the media. In addition, Honda has just become the first automaker to address electronic throttle control software problems.

    Why doesn’t the public have access to the most-often-to-suddenly-accelerate vehicle list? How hard are the automakers trying to keep such information hidden? Will what you do not know ultimately put you or your family in unnecessary jeopardy? Will the PR agenda of the automakers continue to push for a “pedal misapplication” final report in these crash events?

    How long will the flawed study into Toyota and Lexus sudden unintended acceleration by NASA/NHTSA be touted as a reason to blame the vehicle owners? How often will the old Audi SUA investigation be cited by online PR trolls in an effort to justify immediate incrimination of the driver victims? More importantly, how long will the public be deceived?

    Why was Toyota whistleblower Betsy Benjaminson recently issued a subpoena by Toyota Motor Corporation? Is this an on-going effort by the automaker to silence the exposure of Toyota internal documents related to the electronic sudden unintended acceleration? Why hasn’t Ms. Benjaminson’s information been covered by the U.S. media as it has been overseas? More importantly, why hasn’t the U.S. Department of Justice made reference to this information in its recent criminal investigation of Toyota? Why have we only heard about *mechanical* causes of SUA?

    Something is amiss. Doesn’t the public deserve to know the truth? After all, electronic sudden unintended acceleration affects everyone, not just vehicle drivers. Pedestrians and storefront occupants have been killed or maimed. Even residents in homes have been impacted. SUA events are not just occurring on the highways; they are happening in parking lots and from a standstill at traffic stops, too.

    This serious problem isn’t just about elderly drivers, drivers with medical conditions, or impaired drivers as a seemingly pervasive PR effort might have you believe. This is about vehicles out-of-control because of electronic glitches and ineffective fail-safes. This is about unregulated critical safety standards in complex electronically-controlled vehicles.

    Charlene McCarthy Blake

  3. Charlene McCarhy Blake

    CLASSIC *parking lot* sudden unintended acceleration in this case.

    1) driver pulls into or out of a parking space/spot with braking
    2) engine revs loudly…ROARING…
    3) open throttle vehicle TAKES OFF, often jumping curbs, climbing embankments, crossing medians
    4) CRASHES into storefront, building, or homes with bulldozer-like power
    5) wheels continue spinning AFTER impact, squealing and burning rubber until smoke fills space
    6) driver in a state of shock about what just happened
    7) IF death or injury to others, driver’s reputation slammed and charges filed

    THEN…police and automaker rule DRIVER ERROR (or “medical condition” or “elderly” or “impaired”) because we must NOT blame the highly-complex, computer-driven, electronic glitch-prone vehicle!!

    BEWARE of auto industry-known initial low-speed or no-speed ELECTRONIC sudden unintended acceleration! This type of #SUA is far more common than you think!

    Charlene McCarthy Blake

  4. Charlene McCarhy Blake

    There is a BIG hidden secret in the auto industry…it’s called ELECTRONIC sudden unintended acceleration! I know…you thought that was just about FLOOR MATS and sticky pedals, or “driver error,” right? That’s certainly what TOYOTA would like you to continue to believe, BUT DON’T!

    These ultra-complex new engines are completely computer driven. Software is needed to control the throttle system. You THINK you are giving gas when you press the accelerator, but you are only SUGGESTING this to the computer. In electronic SUA cases, the throttle software may be glitch-prone and NOT do as you wish.

    What happens then? Well, the glitch may (and has for countless SUA victims) result in an OPEN THROTTLE situation. The brakes become INEFFECTIVE in these situations and crashes into storefronts, buildings, and homes have resulted.

    What does the automaker say? They hook the vehicles up to the computer and declare NOTHING WRONG! They cite the EDR which has erroneous data and say YOU were NOT braking. They point the finger at you based on AGE, GENDER, MEDICAL history, prescription meds, etc. YOU name it, they’ve TRIED it!

    Get the picture? And you THOUGHT the GM issue was big? Think again! This cover-up of ELECTRONIC SUA is scandalous and very well-orchestrated.

    Why even a WHISTLEBLOWER has been legally harassed by Toyota as it does NOT want her Toyota internal docs posted online anymore. The automaker wants to intimidate and SILENCE her. It doesn’t want the PUBLIC involved, for goodness sake!

    Charlene McCarthy Blake

  5. Roger Eaton

    For many years now I have been aware of the many incidents of (mostly) older people driving to other people while at the wheel. A famous one is the man who drove thru the farmers market in Santa Monica a few years ago and so many more like it. In that instance many of the witnesses seemed to agree that the man seemed to be accelerating as he drove over ten people and this adds to my theory of what is happening.

    Most everyone in the US drives a car with an automatic transmission, there are of course, exceptions but these incidents do not happen to people with stick-shifts. The problem as I see it is when a person gets twisted in their drivers seat (1) or for whatever reason misses the brake pedal and instead pushes the gas pedal (2) and the car does not react the way they thought it was going to react and they think that they are pushing on the brake (mistakenly) their immediate reaction is to push HARDER on the pedal they are convinced is the brake, trying to STOP the car. And this action does not stop the car but makes the problem worse. There is no way they feel that they should let go of the brake and let it go into the crowd, but they are NOT pushing on the brake but the gas!

    My solution for this phenomenon I believe is to re-educate the driving public to start driving with two feet, using the left foot for the brake. If everyone did this, when a situation came up like described above, a simple tap with the left foot would alert the brain to the fact that you are on the gas not the brake as you thought.

    (1) It really doesn’t take much of a mis-alignment for this to happen.

    (2) The pedals are very close together sometimes almost over lapping.

    I am not any kind of expert in this field, just an old retired auto-mechanic so this ain’t gospel just my opinion.

  6. Connie Hawkins

    Oh the loss of LIFE due to penny pinching and other misguided attitudes.

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