Cell phone and text messaging distractions in accident litigation

Written by Ken Shigley

When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. I was one of them. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

The recent train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

Current state laws on this emerging topic include:

• Cell phones: California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
• Text Messaging: Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
• New Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
• School Bus Drivers: In 16 states and DC, school bus drivers are barred from all cell phone use when passengers are present, except for in emergencies.
• Other rules: Some cities, such as Phoenix and Detroit, have cell phone laws, but nine states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.

My guess is that legislators around the country will soon pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving.

In auto and truck accident litigation, we have become diligent about discovery of cell phone and text messaging records. With increased sophistication about electronic discovery, this will be an an even more important factor in accident litigation.

There are at least three potential uses of cell and text evidence:

1. The defendant's cell phone and text usage while driving may be considered "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving.
2. The plaintiff's cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.
3. If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer's business, then the employer and its insurance policy may be drawn into the case.