You see distracted drivers on the road all the time. In our fast-paced society, a distracted driver may be using an electric shaver, drinking coffee, eating a Big Mac, and reading a novel-all at the same time. Nearly every motor vehicle collision is caused by inattentive drivers.
There is, however, a more sinister level of inattention that occurs when drivers text or email while driving. Numerous driver studies conducted around the world rate the cell phone driver as equal to the fatigued, and in some instances, the drunken driver. Emailing and texting is even worse. The New York Times recently published a report stating that people who text while driving are 23 times more likely to cause an accident. Not only is the brain focused on matters other than driving, but the driver's eyes are also splitting time between completing the texting and the road.
In their first meeting with me, injury victims often mention that they have suspicions that the at- fault driver was on a cell phone or texting. This is an important piece of information that needs to be promptly investigated.
Why it's Important Information
A driver who simply makes an error in driving and accidentally causes an accident is viewed differently in the eyes of the law than a driver who willfully and with reckless indifference causes an injury accident from texting. Texting and driving is willful and reckless and can result in a court awarding heightened recovery to a victim.
Currently, only 14 states have outlawed texting while driving. Colorado recently passed such a law that goes into effect on December 1, 2009. We also have laws about driving with a willful and reckless disregard for the safety of others. These laws can and should be used to hold these dangerous drivers responsible.
What Should Be Done?
An attorney acting in the best interest of his client should take immediate action to get to the bottom of whether texting or cell phone usage was the primary cause of the accident. The only way to prove that the driver was texting at the time of the accident is to subpoena the cell phone company records. This requires filing a lawsuit against the driver, taking his or her deposition and learning the cell phone number and their service provider. Lastly, the records from the phone company need to be reconciled with the timing of the traffic accident.
This above method is the only way to prove cell phone or text messaging caused a collision. Once the lawyer gets the information to support the "texting during driving" allegation, the appropriate next step is for the attorney to file a motion to amend the Complaint to add punitive (sometimes called exemplary) damages.
These cases should be treated just as seriously by your attorney as if you were hit by an intoxicated driver. Texting and driving is serious, it can be deadly, and a victim should be certain that his attorney is aggressively investigating these issues.
At Anderson, Hemmat & McQuinn, we understand the importance of these issues and are here to assist you. As always, your initial consultation is free.