The National Highway Traffic Safety Administration (NHTSA) says distracted driving is dangerous claiming 3,450 lives in 2016 alone. The safety agency adds that 391,000 persons were injured in motor vehicle crashes involving distracted drivers in 2015. NHTSA estimates that, during daylight hours, some 481,000 drivers are using cellphones while driving, creating “enormous potential for deaths and injuries on U.S. roads.” Teens were the largest age group reported as distracted at the time of fatal crashes. These and many other salient facts on the topic are readily available on NHTSA’s website.
Talking on a cellphone while driving is not the only form of potentially disastrous “distraction.” For example, many vehicle operators text while driving. Many states have enacted laws prohibiting such conduct when operating a vehicle. The problem, however, persists and even increases because enforcement of such laws is difficult. Police manpower simply cannot focus on most offenders, especially when they phone or text furtively.
Let’s first understand that NHTSA considers distracted driving to be any activity that diverts attention from driving, including talking or texting on one’s phone, eating and drinking, talking to people in the vehicle, fiddling with the stereo, entertainment or navigation system—anything that takes one’s attention away from the task of safe driving. NHTSA does consider texting as the “most alarming distraction” because sending or reading a text takes the driver’s eyes off the road for five seconds. At 55 mph, that’s like driving the length of an entire football field with one’s eyes closed.
Human Factors expert, Nancy Grugle, with the expert consulting firm Robson Forensic, says that NHTSA’s numbers actually under-represent the number of crashes that involve distraction because they are relying on police reports and self-reporting of drivers. Grugle defines distracted driving as “any activity that diverts attention away from activities critical for safe driving.” Such distractions can be categorized into three main areas: visual, manual and cognitive. Thus, visual distractions are objects that take the driver’s visual attention away from the road and driving environment. Manual distractions are objects that take a driver’s hands off the wheel. Cognitive distraction involves a driver using his brain to process information not related to the driving task. Cognitive distraction can last up to 27 seconds after using voice-activated technology. The riskiest types of distractions are those requiring visual, manual and cognitive resources all at the same time (See N. Grugle, The Epidemic of Distracted Driving, https://www.robsonforensic.com/articles/distracted-driving-expert-witness).
Texting Is Risky
All distractions increase crash risk, but some more than others. Grugle says that texting while driving raises a driver’s crash risk by 23 times, for example. Some effects of distracted driving on driver performance include: increased time eyes are off the road; increased reaction time to hazards; increased braking reaction time; greater speed variability and slower mean speed; increased lane deviations and lane departures; and closer car following. There are others as well.
In early April 2013, Erie Insurance Co. issued a report based on analyzing police report data in the Fatality Analysis Reporting System (FARS), a nationwide census of fatal motor vehicle crashes maintained by NHTSA. Erie Insurance, in turn, consulted with the Insurance Institute for Highway Safety in its analysis. Back then, some 1 in 10 fatalities were in crashes where at least one of the drivers was distracted. Erie Insurance ranked the top 10 distractions involved in fatal car crashes.
Distraction type ranked number one was “Generally distracted or ‘lost in thought’ (day-dreaming)”, representing 62 percent of distracted drivers. Ranked number two was “cellphone use (talking, listening, dialing, texting), representing 12 percent of distracted drivers. It is likely that this number has increased during the last five years. Number three was “Outside person, object or event, such as rubbernecking,” at 7 percent. And so on. (The results of the Erie study are available on the internet).
If distracted driving of all types likely is a “no-no” and certain forms are made illegal by statute, then liability considerations abound. Some forms of distraction—for example, driving at high speed and texting, or receiving texts or phoning—might be deemed “reckless” behavior, possibly justifying a claim for punitive damages. Or, depending on the circumstances, some distractions may amount to ordinary negligence, i.e., a breach of reasonable care, to be treated in the same manner as other accident or injury-causing negligence.
For crashes caused by texting or use of a cellphone, the courts have been dealing with such claims for a number of years. One of the celebrated verdicts in early May 2012, was a $21 million award by a jury in Corpus Christi, Texas in favor of a woman struck by a Coca-Cola driver talking on her cellphone at the time of the accident. Plaintiff’s lawyers were able to convince the jury that Coca-Cola’s cellphone policy for its drivers was “vague and ambiguous” and that the company knew the dangers. The verdict caused quite a stir in the insurance and risk management fields because it was perceived as a wake-up call that companies needed not only to implement a cellphone policy, but also had to enforce it. One remedy might be use of a hands-free device, although that alternative could be debated as a full distraction-eliminator. Companies relying on drivers to do some of their business activities have to take note and take steps to minimize the risks.
Since the Texas verdict, distracted driving lawsuits have increased with juries responding generously in some cases. The consequences of this trend permeate the entire tapestry of motor vehicle accident liability including not only negligence, but also contributory negligence, assumed risks, third party culpability and causation issues. One area needing attention by both plaintiff and defense lawyers is how to develop the information that would prove texting, phoning or other risky distraction behavior. It may be that pretrial discovery of the cellphone records in and around the time of the accident will be necessary. Lining up the phone records with the data stored in the vehicle’s “black box” (the electronic data recorder) may show that the vehicle’s erratic movements are attributable to the distraction conduct. Likewise, social media reminiscences of the accident by a culpable person posted on Facebook, Twitter and other outlets may become relevant. But distracted driving is more than texting or phoning, so counsel’s investigation and probing has to go beyond that.
The foregoing discussion has referred to the causally-errant distracted driver. But what about liability considerations possibly attending the nondriver (a remote sender) who texts or phones the driver with knowledge that the latter is operating a vehicle (and even may be generally aware that he or she is initiating risky, dangerous or culpable behavior)? Well, on May 4, in Vega v. Crane (2018 NY Slip Op 03262 (4th Dep’t)), the Appellate Division held that a remote sender of text messages to someone who the sender knows is driving has no duty to refrain from texting and is not liable for such conduct. The appellate court observed that, generally, a defendant “has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.”
There is, however, precedent for imposing liability on a passenger actually in a car if he distracted the driver immediately prior to the accident. Indeed, the court cited the Restatement (Second) of Torts Section 303, Comment d, Illustration 3, which explained that a passenger is negligent where he “suddenly and unnecessarily calls out” to the driver in heavy traffic, thus causing the driver to crash into the car of a third person. The Appellate Division, however, distinguished the distracting passenger case from the one involving a remote sender of text messages. The court also noted that, while the Legislature passed laws regulating the use of cellphones and other electronic devices by drivers, it did not create a duty for others to refrain from communicating with persons known to be operating a vehicle.
Yet, in Kubert v. Best, 432 N.J. Super. 495, 75 A.3d 1214 (2013), the New Jersey court held as a matter of common law that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted. The “remote texter” issue also was raised in 2016 in a Pennsylvania case called Gallatin v. Gargiulo, No. 10401 of 2015 C.A. (Pa. Common Pleas, Lawrence County). Relying on the Kubert New Jersey court approach, the defendant’s preliminary objection to the pleading was overruled.
Yet another chapter on distracted driving lawsuits is emerging as plaintiffs or public interest groups sue Apple, Samsung, Google, Microsoft and other tech giants for selling smartphones, smart watches and other devices on a variety of theories including products liability. The claim is that the defendants manufactured and sold products that permitted distracted driving but failed to incorporate features into the devices that would block calls or text messages to the driver while the vehicle was being driven. They claim that such features are feasible and that patents have been filed reflecting that practicability.
Just recently, a California appellate court affirmed dismissal of such a lawsuit against Apple, Samsung and others filed by the Coalition Against Distracted Driving. The court said the Coalition “cannot show smartphones and smart watches, when used properly in compliance with law, cause accidents,” in Coalition Against Distracted Driving v. Apple, Cal. Ct. App., 2d Dist., B278992 (May 1, 2018) (unpublished opinion). There also have been a few lawsuits filed by individuals asserting similar claims but unsuccessfully. It is likely the plaintiffs bar nevertheless will keep trying and hoping to catch a favorable ruling.
Distracted driving has become a thriving issue on many fronts with major liability ramifications. There’s a wide swathe of potential creativity here to be developed by interested counsel.
Michael Hoenig is a member of Herzfeld & Rubin.