On Tuesday, April 9th, the Minnesota legislature passed new hands-free legislation requiring drivers to have their cell phones in hands-free mode while their vehicle is moving. The law, signed by Gov. Tim Walz, goes into effect on August 1, 2019. In so doing, Minnesota joined 17 other states which have passed rigorous new laws governing the use of hand-held devices while driving. Shortly thereafter, Tennessee joined the trend and passed new law which makes it illegal for drivers to hold a cell phone or mobile device with any part of your body while driving.
Studies have shown that two out of three drivers used a mobile phone at least once, and those who used their phones while driving used them for an average of nearly four minutes. The ramifications for insurance claims and litigation are astronomical. Every year, more than 170 billion cell phone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred. The significant safety problem of distracted driving has grown exponentially over the past decade and has reached epidemic proportions.
Minnesota amended M.S.A. §§ 169.011 and 169.475 to require that a driver can use their cell phone to make calls, text, listen to music or podcasts, and get directions, but only by using voice commands or single-touch activation. Holding the cell phone while driving is now illegal. This noble effort to keep the streets and highways of Minnesota safer may be difficult to enforce, however, because GPS and other systems that can only be used for navigation are exempt from the Hands-Free law. In-car screens and systems are also exempt. It was already against the law for drivers to send or read text messages, send emails, and browse the internet while driving. Phone calls were allowed if the driver wasn’t distracted.
Tennessee’s anti-texting legislation enacted T.C.A. § 55-8-199, which makes it illegal for a driver to hold a cell phone or mobile device with any part of the body while driving, send, write or read any messages, reach for a device in a way that requires the driver to no longer be in a seated position or properly restrained by a seat belt, watch a movie or video, or record or broadcast video. It is only a Class C misdemeanor if violated and fines range from $50 to $200. However, the ramifications for subrogation and personal injury accident litigation continue to unveil themselves.
As in other states which have passed such laws, litigation (including subrogation claims) now have a new tool with which to prove that a negligent driver violated the law. If a plaintiff or defendant in an automobile accident lawsuit can be shown to have been using a cell phone or other hand-held devices at or near the time of an accident, and the state in which the accident occurred had a law on the books prohibiting such activity, the action might constitute “negligence per se.” Negligence per se means the violation of a law meant to protect the public, such as a speed limit. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently. Instead, the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff. The jury will be instructed that the violation of the statute constituted negligence. Clearly, knowing when and whether a technical violation of a cell phone law has occurred can be critical to the result obtained in adjusting losses, pressing a subrogation claim, or trying a lawsuit. The difficulty, of course, is that most phone information will not reveal if a call which occurred around the time of an accident made the basis of litigation was made using the cell phone’s keypad or the hands-free feature.
Familiarity with the technical aspect of such laws, and whether they exist in the state in which an accident occurs, has become a necessity of claims handling. The chart found HERE is a summary of current law across all 50 states governing the use of cell phones, texting, and/or the manipulation of hand-held electronic devices while driving. Every state is different, and some states have no legislation. Related laws governing the use of headphones or other devices which would impair a driver’s attention or hearing are also included where relevant. For more information on aggressive auto subrogation in all 50 states, contact Gary Wickert at [email protected].