State Rep. James Tipton (R-Taylorsville) and several co-sponsors recently introduced the Phone-Down Kentucky Act. The proposal would ban most cell phone use while driving.
The proposed measure includes some exemptions, mostly emergency calls and first responder exclusions. “I’ve talked to a lot of people. I’ve asked them their thoughts on this. They say, ‘Yeah, we’ve experienced issues with this,’ Tipton said. “We see people that are just doing things that aren’t wise, and I think the public’s ready for this action right now,” he added.
A legislative committee is currently considering House Bill 255.
Negligence Per Se and Distracted Driving
Currently, state law prohibits drivers from viewing or sending text-based messages while they operate motor vehicles. “Text-based message” usually means texting, emailing, or posting. This law is probably a bit outdated.
In the past, texting was almost certainly the most dangerous smartphone use for drivers. At freeway speeds, most vehicles travel at least the length of a football field in the two or three seconds it takes to send or review a brief text message. When people talked on their phones, they at least had their heads up, at least in most cases.
Today’s advanced smartphones make those old flip-phones seem like tin cans connected by string. Kentucky’s law does not address things like video streaming, web surfing, and any of the other things people routinely do with their phones.
So, the negligence per se doctrine (a statutory violation) in this context only has limited applicability. This rule only applies if drivers violate a safety law and that violation causes a crash. Furthermore, it only applies if emergency responders issue a citation. Usually, emergency responders are too busy with other things to write what is essentially a ticky-tack citation.
The Ordinary Negligence Doctrine
Therefore, most device distraction cases rely on the ordinary negligence principle. These victims must establish negligence, or a lack of care, by a preponderance of the evidence, or more likely than not.
Let’s start with the duty of care. Most jurors would not consider something like declining a call or glancing at an alert to be a breach of care. Most Fayette County jurors consider these things one-time lapses, probably because there’s a good chance they did these things themselves on their way to the courthouse.
Prolonged or ongoing use, however, is another question. Most jurors have little sympathy for drivers who dangerously multi-task behind the wheel.
Now for the evidence portion of an ordinary negligence claim. Erratic driving prior to the crash and the tortfeasor’s (negligent driver’s) statements about device use are admissible in this area.
Device use logs often provide the critical proof. Unfortunately, this proof is often unavailable. Many cell phone users “accidentally” delete this information before an attorney can access it. To prevent that from happening, a Lexington personal injury attorney must immediately send a spoliation letter to the tortfeasor. This letter prohibits the recipient from tampering with physical evidence, including device use logs.
Even if the tortfeasor deletes the log, all is not lost. The data is still there. It’s just more expensive and time-consuming to extract it.
Resolving Device Distraction Claims
Compensation in a device distraction or other car crash claim usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Although this compensation is available, insurance companies do not simply give it away.
In fact, the opposite is usually true. If there is the slightest question about liability, many insurance companies fight these claims tooth and nail. These companies make money by collecting premiums and lose money when they pay claims. Additionally, many insurance companies do not want to set a negative precedent by offering to do what’s right.
When two sides are far apart, mediation often brings them together. A third-party mediation, who is usually an unaffiliated Lexington personal injury attorney, meets with both sides in an effort to forge a settlement. If both parties negotiate in good faith, which basically means they are willing to make sacrifices and reach an agreement, mediation is usually successful.
Trials resolve a few accident claims. Sometimes, the two sides are light-years apart, and mediation fails. Other times, one side wants or needs the legal or emotional closure which only a trial brings.
Device distraction crash victims have several legal options. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers