Why Drivers Should “TTYL”: Courts Get Tough on Distracted Drivers

Courts are expanding liability for distracted drivers and for parties who enable distractions to occur, including third-party message senders and product manufacturers.   Drivers using their cellphones can be distracted when they text, use GPS systems, and interface with a variety of other applications.  As use of these devices increases, so does the potential for accidents to be caused by them.  

In an attempt to curtail the rising number of injuries and fatalities caused by distracted drivers, forty-one states, including Pennsylvania, have banned text messaging while driving.  Some states, like New Jersey and New York, go further by banning all hand-held use of cellphones while driving.  Although no state has completely banned all cellphone use for all drivers, thirty-seven states prohibit all cellphone use by novice drivers, and twenty states prohibit school bus drivers from all cellphone use.  

Despite these efforts, new and emerging technology enables drivers to circumvent legislative attempts at preventing distractions.  Hands-free devices, for example, allow drivers to use their cellphones without breaking the law.  Although the law has yet to address this new area of technology, recent studies indicate that hands-free devices are no safer than hand-held devices.  See, Max Mitchell, Distracted-Driving Cases Are on the Rise in Pa. Legal Intelligencer (Sept. 9, 2013).  Using this new information, plaintiffs’ attorneys may start arguing that hands-free technologies are inherently dangerous and therefore subject to product liability claims.  Id.  It is possible that automobile and cell phone manufacturers could be held liable in the future for enabling technology like GPS and social networking to function while a car is operating.  Id.  These attorneys would argue that by designing and producing these products, manufactures create an opportunity for drivers to become distracted. 

According to the National Highway Traffic Safety Administration, distracted drivers in the United States caused over 3,300 deaths in 2012.  As courts punish those responsible for these fatalities, they must wrestle with issues including how the distracting devices can be properly used and whether to use negligence or reckless disregard as the standard for determining liability.  Courts have also struggled with determining who is liable in these cases.  In some cases, employers have been held liable for their employees’ distracted driving, and New Jersey has gone so far as to hold that a text message sender can be liable if the sender knew that the message recipient was driving when the message was sent to them.  See Kubert v. Best, 432 N.J. Super. 495, 75 A.3d 1214 (N.J. Super. Ct. App. Div. 2013).

Within the state and federal systems, courts disagree on whether distracted driving constitutes reckless disregard and warrants punitive damages.  In Pennsylvania state courts, evidence of cell phone use while driving has been found sufficient and insufficient for a finding of extreme recklessness, depending on the facts of the case.  See, e.g., Kondash v. Latimer, No. 09 CV 8622 (Lacka. Co. Nov. 19, 2012) (holding allegations of phone use could be used by the jury to establish recklessness) cf. Xander v. Kiss, No. CV–2010–11945, 2012 WL 168326 (Pa.Ct.Com.Pl. Jan. 11, 2012) (holding use of cell phone while driving was not sufficient to establish recklessness).  The same has occurred in the U.S. District Court for the Eastern District of Pennsylvania.  See, e.g., Pennington v. King, No. 07–4016, 2009 WL 415718, at *6 (E.D.Pa. Feb.19, 2009) (holding evidence of cell phone use could be used to award punitive damages) cf. Piester v. Hickey, 11-CV-04720, 2012 WL 935789 (E.D. Pa. Mar. 20, 2012) (holding evidence of cell phone use alone could not be used to establish recklessness).  These ambiguous holdings indicate that distracted driving cases will be resolved on a case-by-case basis using a highly factual analysis.

The recent abundance in distracted driving case law has also impacted pre-trial discovery.  Whereas cellphone records used to be difficult to obtain, they are now more readily discoverable to use as evidence of distracted driving.  See, Max Mitchell, Distracted-Driving Cases Are on the Rise in Pa. Legal Intelligencer (Sept. 9, 2013).   If a driver claims that they were not using their cellphone, the plaintiff can use cellphone records to attack credibility.  Id.  Some law enforcement agencies have developed the “11-tap test” to determine whether a driver was using his or her phone for texting, rather than for dialing.  Id.  This test is based on the reasoning that if a driver taps his phone at least eleven times, he or she is likely texting, rather than dialing a 10-digit number.  Id.

Moving forward, plaintiffs’ attorneys are likely to argue for the strictest punishments for drivers and other third-party defendants, pushing liability to its furthest limits.  Product manufacturers should be prepared to argue that the design of their project is not inherently dangerous.  Anyone sending a text message to someone that they know is driving must be prepared to face the possibility of shared liability, especially in New Jersey.  Contact your Nicolson Law Group attorney for more information on distracted driving laws and enforcement.  

The information herein is provided for consumer educational purposes only.  The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law.  The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case.  For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Law Group’s licensed attorneys.