Car Accident Liability: Texting and Using Phone While Driving

Talking on the phone is not always negligent, although it is against the law in some states.

As the increase in traffic laws prohibiting it should tell you, texting while driving is an absolute no-no. Using a phone while driving is a closer call. Talking on the phone is not always negligent, although it is against the law in some states. However, doing other things on the phone, such as dialing, looking through one’s address book, and reading old texts, may very well be negligent, if not illegal. Let’s take a look at these issues in more detail, as they pertain to fault for a car accident.

What is Negligence?

Negligence is the concept that determines fault in most personal injury cases, including car accident claims. Negligence means not exercising reasonable care under what lawyers call the "reasonable person" standard. Basically, if a reasonable person would have done a certain action, then not doing that action would amount to negligence. Alternatively, if a reasonable person would not have done a certain action, then doing that action would be negligent.

In the context of a car accident case, when the violation of a traffic law causes a car accident, that's a pretty clear-cut case of negligence.

A Driver’s Responsibilities

The basic duties of any driver of any type of vehicle are to obey the traffic laws and to be aware of what is around him/her. Another way to put it is that all drivers must keep a lookout for obstacles on the road -- other vehicles, pedestrians, traffic control devices, and the like. As a general rule, if a driver fails to see or notice what is plainly there to be seen, or is unable to see what is there to be seen, he/she is likely going to be found negligent and therefore liable for any car accident and resulting injuries.

Texting While Driving

Texting while driving is negligent because, very simply, it is impossible to focus on the road while you are looking at your phone to text. Further, in order to text, you have to use at least one hand, meaning you have one hand -- and perhaps no hands -- on the steering wheel. They were serious in driving school when they taught young drivers to keep both hands on the wheel.

Let’s look at some government statistics, courtesy of the National Highway Traffic Safety Administration:

  • Drivers who use hand-held devices are 4 times more likely to get into crashes serious enough to injure themselves
  • Text messaging creates a crash risk 23 times worse than driving while not distracted
  • Sending or receiving a text takes a driver's eyes from the road for an average of 4.6 seconds. That is the equivalent of driving the length of an entire football field at 55 MPH while blind

Get more facts on texting while driving from the NHTSA Distracted Driving web portal.

Using a Phone While Driving

First, you must remember that some states ban all cell phone use while driving unless the driver is using a headset. However, more government research reports say that headset cell phone use is not substantially safer than hand-held use and that driving while using a cell phone reduces the amount of brain activity associated with driving by 37%. That doesn’t sound good.

Even if cell phone use without a headset is legal in your state, it may still be negligent. As we said above, negligence means not exercising reasonable care. There are times where talking on the phone or using a phone in some other way while driving is simply not reasonable. Let’s look at a couple of examples.

Let’s say that you’re driving at night and in the pouring rain or during a snow or ice storm. That’s hard enough as it is; driving with one hand and holding a phone to your head with the other hand just makes it even harder. A jury hearing those facts is very likely to find that driver negligent in connection with any resulting car accident.

Another example is driving in stop-and-go traffic. This type of driving requires the driver to keep his/her eyes on the road. Let’s say that you just want to look at the phone for 3 seconds to get a phone number or to check a previously received text. Within those 3 seconds, the person in front may have stopped, and you will likely rear end him/her.

How Phone Use Comes into Play at Trial

If witnesses to a car accident saw a driver looking down just before the accident, it is very possible that the person was using a phone. If that case goes into suit, the injured person’s lawyer will undoubtedly subpoena that driver’s cell phone records. Comparing the phone records with the exact time of the accident will show whether the driver was using the phone at the time of the accident. Even if the driver was not having a telephone conversation and was not sending a text, if someone is seen looking down just before an accident, in this day and age no jury is going to believe that that driver was not looking at his/her phone.

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