According to the National Highway Transportation Safety Administration (NHTSA), each year in the United States cell phone car accidents account for more than 200 fatalities and 500,000 injuries. Cell phone use causes one out of every four car accidents. In addition to talking and texting, taking photos, watching videos, and looking at GPS readouts increasingly distract drivers.
In this section, we review the following topics:
- Ways cell phone usage causes accidents
- Liability – why a distracted driver is responsible for paying damages
- Damages – what losses the victim can recover
- Evidence – specific cell phone accident evidence
- Filing an insurance claim
- Self-representation vs. hiring and attorney
How Using a Cell Phone Causes Accidents
Cell phone distraction comes in many forms. Any one distraction can be enough to divert a driver’s eyes from the road or his hands from the steering wheel. It can take less than a second for an accident to occur. Distracted drivers often fail to brake or maneuver out of the way of other cars until it’s too late.
Holding the cell phone to the ear and speaking
This usually requires one hand to hold the cell phone, leaving the other to guide the steering wheel. Driving with one hand greatly lessens the driver’s ability to maneuver, especially in situations that require full control of the steering wheel. Also, while the driver is listening to the person on the other end of the conversation, he’s less likely to hear horns, police, or ambulance sirens.
Texting and emailing
Texting and emailing are very dangerous. While typing, the driver removes his eyes from the road and his hands from the wheel. It can divert the driver’s attention for several seconds at a time. Depending on the speed, hundreds of feet can fly by each time the driver looks away from the road.
Many younger drivers don’t realize the relationship between speed and time of eye diversion. The false sense of security the vehicles provide and their lack of experience can come together to result in a horrific collision.
Taking photos and videos
For some drivers, rubbernecking is an excuse to take photographs and videos of car accidents, police arrests, and other factors causing traffic to slow. When using a camera, the driver’s eyes are off the road and his hands off the steering wheel. While the driver slows to take his photograph or video, traffic continues moving. This often results in rear-end collisions.
Cell phone GPS guidance systems
Cell phone global positioning systems (GPS), especially those without a verbal readout function, can present a danger similar to what texting and emailing poses. In the time it takes for a driver to divert his eyes to the GPS readout, he can crash into the car in front of him, one coming from the side, pedestrians in the walkway, bridge abutments, guardrails, etc.
Cell phone Skyping
Although a relatively new cell phone phenomenon, using the Skype videophone system is dangerous, even more so than texting or emailing. Depending on the amount of time a driver’s attention is away from the road and on the screen, hundreds of feet can go by, resulting in violent crashes unabated by braking or maneuvering.
While hands-free cell phones keep both of the driver’s hands on the steering wheel, they can still distract the driver. When the driver’s thought process is off the road and on the conversation, normal signs of impending danger are lost to the conversation. The driver’s thought processes are oblivious to cars coming from different directions, passengers entering the road, and upcoming traffic signals.
Note: Today, states with bans on all hand-held cell phone use while driving are California, Connecticut, New Jersey, New York, and Washington. Alaska and Minnesota permit hand-held cell phone use, but ban texting. Because states are constantly changing their cell phone driving laws, check the cell phone laws in your state.
A distracted driver is legally responsible for the damages he causes. To understand responsibility in cell phone car accidents is to understand the process of legal liability, which concerns cause and effect. All 50 states impose on every driver a legal duty of care (obligation) to other drivers who share the road. This means every driver is bound to look out for the safety and well-being of every other driver.
When a driver intentionally engages in distractive conduct by using his cell phone, the driver breaches (violates) his duty of care to other drivers. That breach of duty is called negligence. When negligence results in an accident, the driver becomes liable for the damages he causes. Here’s how it works:
- Cell phone distraction is a breach of duty of care.
- Breach of duty of care is negligence.
- Negligence causes car accidents.
- Car accidents result in damages to victims (property damage and injuries).
- The negligent driver then must legally compensate the victim for his damages.
A victim in a cell phone car accident is eligible for compensation for all reasonable damages. Reasonable damages include:
- Property damage – the cost of having the car repaired or payment for its fair market value, also personal property damaged in the accident like computers, clothing, jewelry, etc.
- Medical bills – emergency room costs, doctors’ bills, hospital bills, chiropractic treatment, and physical therapy
- Out-of-pocket expenses – prescription and over-the-counter medications, crutches, bandages, nursing care, and so on
- Pain and suffering – mental anguish, emotional distress, loss of consortium (marital intimacy), and other intangible losses
To recover compensation for damages, the victim must prove:
- The cell phone-distracted driver was negligent; and
- That negligence was the direct and proximate (legally acceptable) cause of his damages
To prove negligence and proximate cause requires evidence. The evidence must show how the distracted driver was negligent and how that negligence directly caused the victim’s property damage and injuries.
If the car accident occurred because the driver was on his cell phone, and state law prohibits cell phone use while driving, the driver’s violation of that law is strong evidence. Make sure you tell the police officer the driver was on his cell phone at the time of the accident. If the officer can confirm he was, he may issue a citation. He will note the citation in the police report.
When a car accident results in injuries, the police will come. They survey the accident scene, speak with both parties to determine the extent of injuries, and summon emergency medical care if necessary. They also create a police report.
The police usually draw a diagram of the accident scene and note which driver was at fault and why. They gather witnesses’ names and addresses, and note what the witnesses saw or heard. If they issue any traffic citations, especially for using a cell phone while driving, that goes in the notes, too. You can purchase a certified copy of the police report a few days later for a nominal fee.
Photographs and videos
Photographs taken with a digital camera or, ironically, with a cell phone camera are very effective evidence. They can show the point of impact and skid marks. They can show stop signs or traffic signals the distracted driver ignored or didn’t see. Photographs of beer bottles and open containers of alcohol in and about the distracted driver’s car are exceptionally important. If the officer administers a field sobriety test, a video is compelling.
Although the police may take the names and contact information of some witnesses, they may not have the time to do any in-depth interviews. Witness statements, especially if the witnesses say they saw the driver on his cell phone right before the accident, are crucial.
Admissions against interest (statements the distracted driver makes that tend to show he was negligent) are very effective evidence. Statements a witness may hear from the driver like “I didn’t see him coming,” or “I was on the phone with my girlfriend,” etc. are powerful evidence of negligence.
Cell phone records
Cell phone records can prove the approximate location and time the distracted driver was on his cell phone. This is powerful evidence in the face of the driver denying he was on his phone at the time of the accident.
The phone company won’t voluntarily release another person’s cell phone records. A subpoena, as part of a lawsuit, is necessary. If you filed your own small claims lawsuit, you can ask the court to issue a subpoena for the records. Otherwise, an attorney can do it for you.
Medical records and bills
Medical records won’t prove negligence, but they can directly link the accident to your injuries. If you’re hurt in a cell phone car accident, don’t refuse medical treatment. Emergency room treatment is proof your injuries resulted from the accident.
If you don’t go the emergency room, see a doctor as quickly as possible so she can treat you and help link your injuries directly to the accident. Remember, the evidence must show the accident was the direct and proximate cause of your injuries. The longer the delay between the accident and seeing a doctor, the greater the chance the insurance company will say your injuries were pre-existing, or they were caused by an incident subsequent to the accident in question.
Filing an Insurance Claim
If a cell phone car accident occurs in a no-fault insurance state, you have to file your insurance claim with your own insurance company. It’s still important to gather the distracted driver’s insurance information. Although it’s probably also in the police report, don’t take any chances. Your insurance company will need it in case it can subrogate (transfer the claim) against the driver to recover its payout.
If you live in an traditional liability state, you must get the other driver’s insurance information. You then need to contact his insurance company to file a claim. You receive a claim number, and an insurance adjuster will subsequently contact you to initiate settlement negotiations.
Self-representation vs. Attorney Representation
“Do I need a lawyer?” is a familiar refrain in car accident injury claims. The best way to determine whether you need an attorney is to examine your damages. If they’re primarily soft tissue injuries such as sprained tendons or muscles, whiplash, cuts, and bruises, you can probably handle your own claim.
However, if your injuries are the more serious hard injuries such as broken bones, internal bleeding, scarring, head trauma, deep wounds, or other injuries requiring extended hospital care, you probably need an attorney. There’s a lot at stake. Your attorney may have to file a lawsuit and conduct complex legal tasks during pretrial discovery. Without formal training, you won’t know what to do.
See an example of a cell phone accident demand letter here.
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