Thursday, April 14, 2011

Texting While Driving--You Might As Well Be Driving With A Bag On Your Head

Much has been written lately about the dangers of texting while driving. My good friend and blogger extrordinaire Robert Mues has an excellent synopsis of the scope of the problem, and what states are trying to do to curb it, over at The Ohio Family Law Blog.

The numbers of crashes due to texting are staggering. In fact, he coined the phrase "intextication" as a means of relaying that, in many ways, texting while driving is just as bad as driving intoxicated. Recently, I have noticed a shocking increase in the number of young drivers who are messing with cell phones way too often while driving. The other night, as I was returning from my son's lacrosse came, a driver was riding too slowly in the left lane of the highway. When I passed her in the right hand lane, she was looking down at the screen of her cellphone with both thumbs on the pad.

I see this all too often. Although I like the phrase "intextication," I describe it as follows:"you might as well be driving with a paper bag over your head."

I also suspect that the problem is underreported in many crashes for the following reason. Assume a driver runs a light at an intersection while texting and injures a fellow motorist. The investigating officer does not ask the offending driver if he was texting at the time of the collision. The insurance company for the texting driver admits liability for the crash, knowing through their own internal investigation that their driver was texting.

If the injury claim is negotiated without a lawsuit being filed, the insurance company will never reveal that its insured/negligent driver was texting at the time of the collision. Instead, they'll simply admit that "our insured was at fault" in an affort to blunt any attempt to discover whether texting was involved in the crash.

If a lawsuit is filed, this tactic will be repeated. Any attempt to discover whether texting was involved will be fought on the grounds that, "gee, this is a witchhunt and a fishing expedition because we admit liability, so there's no need to get into any of this." And if the negligent driver is deposed and admits to texting, or his cellphone records are subpoeaned and texting at the time of the crash is proven, before trial the insurance company will file a motion to exclude evidence of texting on the grounds that because liability is already admitted, evidence of texting would be irrelevant and prejudicial.

Which circles back to the idea of "intextication." In the context of intoxication, in Ohio, an impaired driver can be liable for punitive damages for being "reckless"--knowingly driving impaired when it is more likely that a crash will occur. In this case, evidence of intoxication is admissible even if the insurance company for the impaired driver admits liability.

It remains to be seen if evidence of texting while driving is comparable to driving while intoxicated, in order to support a punitive damages case against the driver and admissibility of evidence of texting at trial. In my humble opinion, there's really not much difference between the two. This is the next legal battleground in the larger legal picture as technology races ahead, with all its permutations, and the law tries to play "catch up." Unfortunately, there will be many more crashes, injuries, and deaths in the meantime. OMG.

1 comment:

Ben Buchwalter said...

Thanks for this post! As technology grows even more prevalent, we are reminded every day about the dangers of distracted driving. And while it's encouraging that more than 30 states have adopted laws against it, those are usually secondary laws. So officers generally still cannot pull a driver over for distracted driving unless he or she has committed another infraction. I'd like to see better laws against distracted driving nationwide, and that starts with raising awareness about the risks. I, for one, choose not to drive with a bag over my head.