Texting while driving is perhaps the most dangerous form of driver distraction. According to the National Highway Traffic Safety Administration (NHTSA), a car accident is 23 times more likely to happen when a driver is texting. NHTSA found that 30 percent of all car crashes in the United States result from drivers who admit to texting right before the accident. And those are just the drivers who admit it.
NHTSA studies also found texting while driving is more dangerous than driving with a blood alcohol level of .08 – the percentage almost every state uses to determine intoxication. Research at the Virginia Tech Driving Institute revealed:
The minimum amount of time a driver is distracted from driving while texting is five seconds. At sixty miles an hour a car travels over one hundred yards in five seconds – the full length of a football field.”
Every year, more and more people suffer injuries in collisions caused by texting drivers. Along with the increase in texting accidents have come an increased number of personal injury insurance claims and lawsuits.
In this section, we cover:
- Legal liability
- Evidence – texting as specific evidence
- Filing an insurance claim
A texting driver is legally liable for the damages he causes. All 50 states impose upon every driver a legal duty of care (obligation) toward other drivers who share the road. This means every driver must look out for the safety and well-being of every other driver.
When a driver intentionally engages in distractive conduct by texting and driving, the driver breaches (violates) his duty of care to other drivers. That breach of duty is negligence. When negligence results in an accident, the driver becomes liable for the damages he causes. Let’s break it down:
- Texting while driving is inherently dangerous. It fairly implies a driver is not sufficiently looking out for the safety and wellbeing of others. That failure to look out for others is a breach of the driver’s legal duty of care.
- The courts have traditionally said when a driver breaches his duty of care by texting and driving, he is negligent.
- When the texting driver’s negligence results in a car accident, he’s responsible for the damages he inflicts on the other driver, the victim. The victim is entitled to compensation for all the reasonable damages directly resulting from the accident.
Now that we’ve established the texting driver’s liability, the next step is to determine what the courts traditionally consider a victim’s recoverable damages. The courts say a victim of another driver’s negligence is entitled to all reasonable damages.
Reasonable damages include:
- Property damage – the cost of engine repair, body shop work, or compensation for the car’s 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 – rental car costs, prescription and over-the-counter medications, bandages, crutches, nursing care, etc.
- Pain and suffering – mental anguish, emotional distress, loss of consortium (marital intimacy), and other intangible losses
Unreasonable damages the victim can’t normally recover are the mental anguish of a family relation, speculative future earnings, tuition refunds, and other damages not directly and reasonably linked to the accident.
You already know the driver’s negligence makes him liable for the damages he causes. Knowing about negligence and damages is one thing. Proving it is another. A victim has to prove the driver’s negligence was responsible for the accident and resulting damages.
The courts call it direct and proximate cause. The victim must prove the driver’s negligence directly caused his damages. Having proof he was texting while driving can substantially increase the likelihood of success in your personal injury claim. In any case, you must have evidence to prove negligence. If your evidence includes proof the driver was texting, that’s even better.
Here’s a list of effective evidence:
Check your state laws on cell phone use. If the driver was texting while driving, the law can consider his violation per se (by itself) evidence of culpability (guilt). Make sure you tell any responding police officers about the driver’s texting. If you convince the officers he was texting, they may issue a citation. That will go into the police report.
In larger metropolitan areas today, police usually only go to an accident if it results in injuries or the accident site poses a danger to other drivers or pedestrians. In smaller towns, the police may respond regardless of injuries. Always call the police.
When they arrive, they survey the accident scene and speak with the parties to determine if anyone is injured. They dispatch medical care if necessary and create a police report. They gather witnesses’ contact information and note what the witnesses saw or heard. If a witness saw the driver speaking on his cell phone or texting, the police try to confirm it.
Make sure you tell the police if you have any reason to believe the driver was using his phone. If the officer issues any traffic citations, especially for using a cell phone or texting while driving, the info goes into the report.
The police also draw a diagram of the accident scene and note which driver was at fault and why. They usually measure skid marks, as well. You can pick up a certified copy of the police report a few days later at the police station for less than $10.
Photographs and videos
Take as many photographs as possible using a camera or your cell phone. Photographs are very effective evidence. They can show the point of impact, skid marks, stop signs and traffic signals the driver ignored or didn’t see. It’s relatively easy for a driver to miss a traffic signal if his hands and eyes are busy texting. Photographs of the driver’s cell phone and open containers of alcohol are exceptionally effective evidence.
If the driver is administered a field sobriety test, try and video it. Get as close as you can to hear what the driver is saying and how he’s saying it. He may be slurring his words while admitting he was drinking. He may also admit to speaking on his cell phone or texting.
The police are usually quite busy at an accident scene. They may not have the time or manpower to speak with all the witnesses or get their full statements. Witness statements are crucial, especially those that say the witnesses saw the driver talking on his cell or texting right before the accident.
Admissions against interest are also quite effective as evidence. These are statements the driver makes tending to show he was negligent. Statements a witness may hear the driver make like “I was on the phone with my girlfriend,” or “I was texting my mother,” etc. are strong evidence.
Cell phone records
Although only the driver’s phone company can release his cell phone records (they won’t unless forced by court order), they’re powerful proof the driver was using his cell phone at the time of the accident. Today, many cell phone companies have technology that can differentiate whether a driver was speaking or texting. Cell phone records can give the location and time the driver was using his cell phone.
If you file a small claims lawsuit, you can ask the court to issue a subpoena duces tecum (an order to produce documents) to the cell phone company for the driver’s cell phone records. The clerks in the court will help you. It’s a rather simple process and is usually free. If not, the cost is minimal. If you retained an attorney, she’ll do it as part of her services.
Medical bills and treatment records can directly link the accident to your injuries. Don’t be a hero. If you’re hurt, no matter how slightly, accept any medical care offered at the scene. Emergency room treatment can provide conclusive proof your injuries resulted from the accident.
If you don’t go to the emergency room, see your primary care doctor immediately. In her narrative or on your chart, make sure she links your injuries directly to the accident. It’s important for the doctor to make that link. That’s evidence of direct and proximate cause. Just make sure she writes down the details of exactly how you were injured.
If you delay treatment, the insurance company may say your injuries were pre-existing or you were hurt in another way sometime after the accident.
Filing an Insurance Claim
If the accident occurred in a no-fault insurance state, you must file an insurance claim with your own insurance company. Be sure you obtain the other driver’s insurance information anyway. It may appear in the police report, but don’t risk it. Your insurance company needs the other driver’s details in case they decide to recover the settlement (referred to as subrogating the claim).
If you live in a traditional liability state, you must get the driver’s insurance information. With that information, you can contact his insurance company and file your property damage and personal injury claim. After filing your claim, you receive a claim number and an insurance claims adjuster will soon contact you.
Do you need an attorney?
Whether you need an attorney or not depends on your injuries. If your injuries are soft tissue, such as sprained tendons or muscles, whiplash, abrasions or contusions, you can probably handle your own claim. If your injuries are the more serious injuries, such as broken bones, head trauma, internal bleeding, scarring, deep wounds, or injuries requiring extended hospital care, you need an attorney.
You also need an attorney if the at-fault driver’s insurance company won’t accept liability. Attorneys can do extensive pretrial discovery (getting all the documents from the other side), and will take depositions (recorded statements) of the driver, witnesses, police officers, doctors, nurses, and others who may have knowledge about the accident or the driver.
Hard injury claims can be quite adversarial. An experienced attorney will fight for you to secure the highest settlement possible.
See an example of a texting accident demand letter here.
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Visitor Questions on Texting While Driving
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