Accident Litigation Increasingly Focuses on Cell Phone and Text Messaging Distraction Issues

As a “seasoned” Georgia trial lawyer, I’ve seen considerable evolution of thinking about safety issues. When I was a young Assistant District Attorney, we occasionally prosecuted DUI cases but still treated them lightly, still laughing at bad jokes about drunks. Then our consciousness was raised by news stories about carnage caused by drunk drivers. Judges, prosecutors and legislators rightly began to take drunk driving more seriously. The term “designated driver” was not in the vocabulary when I was in college, but it is assumed as a necessity in my kids’ generation.

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. 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.

Now we learn that the 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 about cell phone use and text messaging while driving include:
* Handheld 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.
* Novice Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
* School Bus Drivers: In 16 states and the District of Columbia, school bus drivers are prohibited 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.

In the wake of the LA commuter train tragedy, my hunch is that legislators in states around the country will pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving. Most any call phone user who does not now have a Bluetooth or other hands-free device in the car will do so within the next couple of years.

In auto and truck accident litigation, we have already become even more diligent and aggressive about discovery of cell phone and text messaging records. With heightened sophistication about electronic discovery, this will be an increasingly significant factor in lawsuits.

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.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, Ken Shigley has served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. He is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice. A member of the Million Dollar Advocates, he has successfully tried trucking accident cases to multimillion dollar verdict. He has lectured on trucking litigation topics at continuing legal education programs both at home in Georgia and in Nashville, New Orleans and St. Louis, and is scheduled to do so in Chicago this fall. He is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.