The word is finally getting out about the dangers of device distraction, at least to an extent. Hand-held cell phone use among drivers has declined significantly since 2011. However, these figures usually don’t include the motorists who use hands-free phones while they are behind the wheel. Largely because of ridesharing companies like Uber and Lyft, such use has increased significantly over the same period of time.
Hands-free is far from risk-free. These gadgets are visually and cognitively distracting. These users take their eyes off the road and take their minds off driving. Additionally, hands-free devices often give drivers a false sense of security. So, they often take unnecessary risks. Altogether, driving while using a hands-free device is like driving drunk.
Distracted drivers cause many of the serious injury and fatal collisions in the United States. Arguably, these motorists know they are taking unnecessary risks, yet they do so anyway. As a result, a Lexington personal injury lawyer is usually able to obtain substantial compensation in these matters. This compensation normally includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Device Distraction and Negligence Per Se
As of December 2021, Kentucky lawmakers are considering a broad hands-free law which would ban holding and using a cell phone while driving. But right now, Kentucky has one of the narrowest cell phone bans in the country.
Current law usually only applies to talking and texting while driving. Stronger prohibitions apply to some commercial operators, liek school bus drivers, and to motorists under eighteen.
Emergency responders rarely issue these citations, unless drivers admit they were talking or texting. In court, issuing officers can only testify that the defendant was using the device. They cannot testify about the nature of that use. Most people use their phones for lots of things other than talking or texting.
Furthermore, using a hands-free device for any purpose is legal in Kentucky and most other states.
So, the negligence per se doctrine usually doesn’t apply in device distraction cases. If tortfeasors (negligent drivers) violate safety laws, and those violations substantially cause injury, the ticketed driver could be liable for damages as a matter of law.
Lack of causation is usually the only effective defense in these claims. Therefore, the comparative fault defense, which is discussed below, could apply, if the victim was more than 51 percent responsible for the wreck. In that situation, the safety law violation didn’t substantially (mostly) cause the wreck.
Device Distraction and Ordinary Negligence
Kentucky’s narrow cell phone ban normally doesn’t torpedo a damages claim. The narrow law just makes these claims more complex.
The ordinary negligence rule is still available. In this context, negligence is normally a lack of ordinary care. Commercial operators, like Uber drivers and bus drivers, usually have additional legal responsibilities.
The aforementioned compensation is available if a victim/plaintiff proves that the other driver’s conduct fell below the standard of care. Evidence on this point includes:
- Erratic pre-crash driving,
- Device use logs,
- Tortfeasor’s statements about device use,
- Brake application before the wreck, and
- Device location (e.g. was it near the tortfeasor).
A few additional words about electronic evidence. Device use logs establish device use frequency, and a car’s Event Data Recorder usually includes brake application information. Attorneys must act quickly to preserve such evidence before the user “accidentally” deletes the log or an insurance company “accidentally” destroys a wrecked vehicle.
The burden of proof in an ordinary negligence claim is only a preponderance of the evidence (more likely than not). So, a little proof goes a long way.
Ordinary Negligence Defenses
Comparative fault, which was mentioned above, is perhaps the most common insurance company defense in negligence claims. This defense is rooted in a very old case, 1842’s Davies v. Mann.
The plaintiff allowed his donkey to graze on the side of the road. The defendant, who was approaching at a “smartish pace,” then “ran against the ass” and killed it. The court ruled that both drivers were partially at fault. The plaintiff shouldn’t have let his donkey graze on the roadside, and the defendant should have slowed down.
Today, comparative fault laws vary in different states. In many jurisdictions, the victim cannot collect damages unless the tortfeasor is at least 50 or 51 percent at fault. But Kentucky is a pure comparative fault state. Even if the victim is 99 percent responsible for the wreck, the tortfeasor is liable for a proportionate share of damages.
Other negligence defenses include sudden emergency, which excuses negligence in some cases, and assumption of the risk, which usually involves a warning sign like “No Lifeguard On Duty.”
Injury victims are usually entitled to substantial compensation. 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