Despite the presence of tough new laws in Kentucky and elsewhere, distracted drivers still kill thousands of people every year. Partially, that’s because although most drivers agree that using a device behind the wheel is dangerous, they do so anyway. That’s also partially because, as discussed below, device distraction claims only represent a tiny portion of distracted driving injuries.
Because this problem is so complex, a Lexington personal injury attorney has several options in terms of obtaining compensation. This compensation typically includes money for economic losses, such as medical bills, and noneconomic losses, such as medical bills. Solid evidence is usually the key to maximum compensation in a negligence case. More on that below as well.
Negligence Per Se
Currently, Kentucky’s cell phone ban only applies to talking and texting while driving. Lawmakers introduced a tougher distracted driving bill in January 2020, but that measure is still stuck in committee.
For now, the negligence per se doctrine only applies if a tortfeasor (negligent driver) was talking or texting on a hand-held phone and caused a crash.
The cell phone ban, speed limits, and other safety laws often establish the standard of care on Kentucky highways and byways. If a tortfeasor violates such a law, and thus the standard of care, the tortfeasor could be liable for damages as a matter of law.
If available, negligence per se is a powerful tool. Since there is no need to separately establish a breach of duty, this doctrine saves time. And, damages are frequently higher in negligence per se cases. Some jurors believe that tortfeasors who ignore traffic laws intentionally put other people at risk.
Even if the “tougher” cell phone ban passes, negligence per se will still not apply in all device distraction claims. It would still be legal to use a hands-free device while driving. And, there is considerable evidence that hands-free gadgets are more dangerous than hand-held devices.
So, most device distraction claims would still involve the ordinary negligence principle. This concept also applies to non-device distraction claims, such as eating or drinking while driving.
The ordinary negligence doctrine primarily comes from Donoghue v. Stevenson, a 1932 English case. According to the evidence in the case, Ms. Donoghue was enjoying a dessert of ice cream and ginger beer at a cafe in Paisley. WHen her beer supply ran low, her friend generously bought her another bottle. Unbeknownst to him, there was a dead snail in the bottom of the bottle.
Back then, there was no such thing as a negligence case. Nevertheless, Donoghue filed an action asserting the novel idea that “it was the duty of [Stevenson, the beer bottler] to provide a system of working his business that was safe, and would not allow snails to get into his ginger beer bottles (including the said bottle).”
Stevenson responded that he owed no such duty to any of his customers, and as mentioned, that was a correct statement of the law at the time.
To resolve this dispute, the court articulated the neighbor rule, a doctrine based on the Good Samaritan story. In the words of Lord Atkin: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour. . . .You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
The neighbor principle soon found its way into American courts and became the duty of reasonable care, which is still in use today.
Many people multitask their way through their days. But such multitasking is dangerous behind the wheel. So, distracted driving violates the duty of reasonable care. If that violation causes injury, the tortfeasor (negligent driver) is liable for damages.
Evidence in Distracted Driver Claims
In ordinary negligence claims, victim/plaintiffs must establish a lack of care by a preponderance of the evidence (more likely than not). In negligence per se claims, the amount of damages awarded is usually related to the amount of evidence presented. So proof is key in both contexts.
Evidence of device distraction includes web browsing history and call or text message logs. Attorneys must act quickly to preserve this evidence. Otherwise, the tortfeasor might “accidentally” delete it. Other evidence in both device and non-device claims includes erratic driving before the crash, the presence of a device or foodstuffs in the car, and the tortfeasor’s admissions.
Distracted driving crash victims have multiple legal options. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act.