CELL PHONE USE & PUNITIVE DAMAGES

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In an article on the internet US News.NBC News.com parents of a University of North Carolina student was texting when he lost control of his car and ran off the road and died. The parents
published their son’s (Alexander Heit’s) final text cut off in mid sentence. Police said after an investigation it was determined that the 22 year old while texting and driving on April 3, 2013, went into oncoming traffic then jerked the wheel and went off the road an died. Witnesses told police that Heit had his head down when he began to go into the oncoming lane. Luckily for the oncoming traffic, they saw him and they moved over just before Heit jerked the wheel to his right and went off the road rolling his car. His text read “Sounds good my man, seeya soon, ill tw”. His mother stated “in a split second you could ruin your future, injure or kill others, and tear a hole in everyone who loves you”.

An article was recently published by Florida lawyers, Leesfield, Segal and Zaner entitled “Driving While on the Cell Phone: Punitive Damage Awards Should Come Through Loud and Clear”. The main point of the article was that laws passed specifically to stop cell phone usage while driving are not working! According to the National Highway Safety Administration, one in four accidents between 4,000 and 8,000 crashes per day are associated with distracted driving.

The Mason-Dixon Polling & Research, Inc. states that 8% of drivers on the road are using cellular phones. Over 40% of Americans admit to conversing on a cell phone while driving. One study concludes that cell phone drivers’ reaction times are reduced by 20% and drivers are more likely to be involved in rear end collisions even though the drivers’ eyes are on the road. The study concludes that this is attributed to “inattention blindness”. What is more surprising is that handheld and hands free phones are equally faulty in creating distracted drivers.

David L. Stranger and Frank A. Drews wrote an article “Multitasking in the Automobile” and concluded that the performance of drivers who are conversing on a cell phone are more impaired than drivers who are intoxicated. Drivers of cell phones have more accidents and slower reaction time than drivers who are legally drunk. The new scientific evidence leads one to believe that
drivers should not use any type of cell phone behind the wheel.

The Florida lawyers wrote about Employer Liability. Statistics have shown that drivers using a cell phone, have been recognized as a driving danger. Law firms and other employers can be held liable for their employees’ use of cell phones while driving. If the law firm provides cell phones to their attorneys and the attorney uses their cell phone and causes an accident with injuries to others, the law firm (as well as the driver) could be liable under “Respondent Superior”. It is foreseeable that a law firm could be held liable for employees who caused an accident while being on the cell phone with his employer or client.

In 1999, Smith Barney was sued when one of its employees caused an accident killing a man while conducting business on his cell phone. Smith Barney settled the lawsuit for $500,000. Law firms should have a clear policy stating specifically the prohibition of cell phone use while driving to protect themselves from future liabilities.

By 2005, law makers in 26 states proposed 62 bills limiting cell phone use while driving. Yet, cellular phone lobbies playing a great role in opposition to these laws, resulted in watered down legislature, to restrict cell phone use has limited success. Only two states, New York & Connecticut and Washington D.C. have cell phone laws enforced on a primary level. (No other traffic offense has to be present to issue a cell phone violation). Ten states, including populous states such as Florida, New York and Pennsylvania have passed legislation preempting all local governments from passing cell phone legislation leaving the legislature to the State.

The Florida lawyers mentioned above suggest that an additional way to stop or discourage driving while on a cell phone is to seek punitive damages. They claim the law should possess the proper means to compensate victims and punish the cell phone users by awarding punitive damages. Just as punitive damages are available in driving while intoxicated cases. The U.S. Supreme Court has already ruled that punitive damage aimed at the deterrence and retribution for punitive damages in DWI cases can be transplanted to cases while being on the cell phone. Being on the cell phone is an intentional, voluntary behavior that endangers drivers, passengers and pedestrians. Proving that a driver was on a cell phone would be fairly simple from cell phone records. They can conclusively prove whether a driver was using a cell phone at a certain time.

The most compelling argument for punitive damages is that all of the dangers and risks created by driving while on a cell phone are avoidable. Punitive damages against a drunk driver will serve as a model by which Courts can assert punitive damages against those recklessly driving while on a cell phone.

Punitive damages (which is not paid by your insurance company) is awarded directly against the driver who has to pay it out of their own pocket. Punitive damages for driving while on the cell phone may prove to be the most immediate and efficient means to stop the epidemic.

If you, or someone you know, has been injured by a cell phone user while driving, contact the law firm of Dominick J. Robustelli & Associates, PLLC at (914) 288-0800.