Texting, Cell Phone Use and Driving

Most people now intuitively understand that texting and cell phone use are dangerous distractions in driving. A large scale study by the Virginia Tech Transportation Institute quantifies driver distraction and cell phone use in six million miles of real-world driving conditions. Any Atlanta injury lawyer must consider the possibility of cell phone use and texting being a factor in any car crash.

In the institute’s studies that included light vehicle drivers and truck drivers, manual manipulation of phones such as dialing and texting of the cell phone lead to a substantial increase in the risk of being involved in a safety-critical event such as a crash or near-crash. However, talking or listening increased risk much less for light vehicles and not at all for trucks. Text messaging on a cell phone was associated with the highest risk of all cell phone related tasks.

For drivers of large truck and other heavy vehicles

  • Text messaging increased crash risk 23.2 times above non-distracted driving.
  • Use of, or reach for, a cell phone or other electronic device increased crash risk 6.7 times.
  • Dialing a cell phone increased crash risk 5.9 times as high as non-distracted driving.
  • Talking or listening to a cell phone 1.0 times as high as non-distracted driving.

Among drivers of passenger cars and light trucks:

  • Dialing a cell phone increased risk of crash or near-crash events by a factor of 2.8.
  • Reaching for an object such as a cell phone increased crash risk by a factor of 1.4 compared with undistracted driving.
  • Talking or listening to a cell phone increased crash risk 1.3 times as high as non-distracted driving.

People often ask whether cell phone use or texting alone can result in an award of punitive damages. Under Georgia law, proper use of a cell phone or other mobile electronic device alone is not sufficient to impose punitive damages. However, in a large truck crash cell phone use or texting violates Federal Motor Carrier Safety Regulations and can provide the basis for an award of attorney fees and expenses of litigation under a statute adopted as part of the Code of 1863. Even without a claim for punitive damages or attorney fees, proof of cell phone use or texting can strengthen a jury’s view of compensatory damages.

Occasionally, a driver talking on a cell phone to his employer in the course of employment can lead to a claim against the employer. That requires diligent investigation.

Proof of cell phone use at the time of a crash can be challenging. Sometimes the driver simply admits it at the scene. In one case I handled as an Atlanta injury lawyer, a truck driver admitted through an interpreter that he had been talking to a family member and never saw the line of stopped traffic before he ran over cars and killed three people. When we later subpoenaed his cell phone records, we found he had been talking with someone in Bogota, Colombia for 25 minutes leading up to the crash.

In most car and truck crash cases, we attempt to subpoena cell phone billing records. The bills list calls and text messages by time in one minute increments and match that with 911 call records and any other available time sources. While the cell phone and 911 systems may not be perfectly synchronized and the one minute billing increments leave room for ambiguity, we can generally get it close enough to show that cell phone distraction was more likely than not.

If the defendant conveniently “forgets” a former cell phone number, sometimes we can obtain billing records by sending a subpoena to the defendant’s employer for billing records on a company phone assigned to the individual. Somewhat less effective is a subpoena for records of any phone associated with the name, address and other identifying information on the defendant driver. As a Georgia wrongful death attorney, I attempted this many times, but the cell phone companies have responded that they could not locate a record with that information.

A more difficult challenge is presented when the driver who caused a crash was using a prepaid “burner” phone purchased without providing identification at a discount or convenience store. Even law enforcement officers with access to search warrants may be frustrated in efforts to obtain usage data on prepaid cell phones.

It is also very difficult to obtain the content of text messages even when billing records are available. Cell phone companies typically retain text messages only two or three days. It would be possible to send a records preservation to every cell phone company by statutory overnight delivery regarding all phones associated with the driver who caused the crash. However, it is rare for the victim in a catastrophic crash to hire a lawyer and get the police crash report in time to prevent deletion of texts by a cell phone company.

One may also demand preservation of the defendant’s cell phone and, upon filing suit, request production of the phone for forensic examination which may cost several thousand dollars. Too often the response is that the phone was lost or destroyed in the crash.

Questions of cell phone use and misuse are involved in nearly every motor vehicle collision personal injury and wrongful death case these days. Investigation must include cell phone usage.

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