It’s going to be a banner year for trial lawyers and a tough year for auto insurers. More than 3,000 people are killed on U.S. roads every year in distracted driving crashes, and the use of cellphones while driving has become one of the main reasons why. A new study authored by Zendrive, a San Francisco-based startup that tracks phone use for auto insurers and ride-hailing fleets, reveals something very telling about human nature—many of us must learn the hard way. The study reveals that despite a proliferation of laws banning cell phone use and texting while driving an automobile, and despite knowing that cellphone use can be a crash risk, more and more drivers are using Instagram and sending and receiving emails and texts at highway speeds, making the roads less safe rather than safer. Mistakes are part of being human and we can all appreciate mistakes as life lessons. Unfortunately, you cannot learn from a fatal mistake and there is often someone else who also pays a steep price.
The Zendrive study, which can be viewed HERE, monitored 7.1 billion miles of travel from December, 2017 through February, 2018, comparing the results with the same period one year earlier. An astonishing 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! This was a 5% increase from the previous year. Use of cell phones while driving increased dramatically across the entire country in the past year, despite fourteen new states passing strong laws banning such behavior. In particular, cell phones were used much more frequently in California, Oregon, and Washington, where new laws were just passed banning their use. Television commercials showing horribly disfigured teenage victims of texting while driving urging their friends not to do what they did have seemingly fallen on deaf ears. Mississippi and Rhode Island were revealed to be the worst states for distracted driving, where drivers spent an unbelievable 8% of their driving time on their phones. In an interesting factoid revealed by the study, iPhone users were far more likely to use their phones than Android users.
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.
Cellphone Use and Distracted Driving
Precisely which distractions are the deadliest hasn’t been conclusively determined. Without regard to where it may rank on the list of the most distracting and dangerous activities drivers engage in, nobody can argue that operating a cell phone, sending or receiving texts, or manipulating hand-held devices while driving are high on the list. According to the National Highway Transportation Safety Administration (NHTSA), at any given moment across America, approximately 660,000 drivers are using or manipulating cell phones while driving.
At 55 MPH, the average text can require even the most adept young texter to take his or her eyes off the road long enough for a car to travel the length of a football field. State legislatures are scrambling to pass common sense laws governing the use of hand-held electronic devices while driving and protect their residents from themselves. However, there are so many variables involved that the process has been slow. Should it be illegal to send a text, receive a text, glance at an incoming call, refer to a phone GPS, or change songs on a smart phone playlist? For years, drivers have had to juggle driving with tuning the radio, adjusting climate controls, monitoring on board navigation systems, referring to maps, fumbling with windshield wiper controls, and setting and adjusting cruise controls. Some states have passed a single law regarding the hands-free use of cell phones and nothing more, while nearly 20 states still have no laws on the books whatsoever. In 2012, the National Transportation Safety Board (NTSB) chairman, Deborah Herman, called for a first-ever nationwide ban on the use of portable electronic devices, including hands-free cell phones, while driving. Shortly before this, the U.S. Senate considered a Department of Transportation spending bill that set up a $10 million grant program aimed at helping states combat “distracted driving” and texting behind the wheel.
We seemingly live in an age where every wrong results in new laws and new regulations. With each stroke of the pen the liberty of average Americans shrinks ever so gradually. Enacting more laws regarding the use of cell phones may sound like a good solution, but do some laws go too far? Since the invention of the automobile, drivers have been “distracted” by a variety of activities undertaken while driving which do not involve a cell phone, but can still be a deadly distraction, such as eating, using navigation systems, putting on make-up, reading a map, drinking, adjusting a radio, using an iPod, removing curlers, controlling children in the backseat, or picking things up off of the vehicle floorboard. Nonetheless, the driver’s urge to stay “connected” and use the down time associated with driving to take care of business or stay in touch with family can be hard to resist.
There are three main types of distractions while driving:
- Visual: The driver actually looks away from the roadway.
- Manual: The driver temporarily removes his or her hands from the wheel.
- Cognitive: The driver’s mind is taken off of driving and goes elsewhere.
All three types of distractions can be deadly. Using a cell phone while driving, however, has the unique downside of taking the driver’s attention away from driving more frequently and for longer periods of time than other distractions. As a result, state governments are taking action to keep the innocent safe by passing laws banning texting while driving, or using graduated driver licensing systems for teen drivers to help raise awareness about the dangers of distracted driving and to protect a demographic seemingly unable to survive five minutes without texting or using their smartphones. The problem has become even worse over the last decade as smartphones, which offer resources from weather reports to navigation systems to thousands of apps are now cheaper and standard. E-mails and text messages can now be written, read, and replied to while driving, making smartphones even more tempting than ever to use while driving. Technology has brought the possibility of conducting business while driving that would years ago have had to wait until you arrived at the office. The effectiveness of cell phone and texting laws on distracted driving-related crashes is unclear and is being studied extensively. Some believe that they go too far, sacrificing personal liberty for the sake of safety and security and others feel they don’t go far enough.
Why Use of Cellphones Is on The Rise Despite the Danger
The use of cellphones while driving has become the new cigarettes. Smoking cigarettes despite knowing the health risks associated with them became a joke over the last 50 years. Those who would scoff at the comparison should know that excessive cellphone use has been diagnosed as a very real addiction, according mental health experts. The average American adult spent approximately 2 hours and 51 minutes on their smartphone every single day in 2017, according to the media analytics company comScore. That comes to an astonishing 5 years and 4 months over a lifetime. That twitchy feeling you get while scrolling through Instagram or hurriedly looking at your phone when it dings, is a sign of actual addiction—and it is killing Americans by the millions. A Smartphone Compulsion Test was developed by David Greenfield, PhD, of the Center for Internet and Technology Addiction at the University of Connecticut School of Medicine. According to Greenfield, a “yes” answer to more than 5 out of the 15 questions indicates that a person likely has a problematic relationship with their mobile device. How else can you explain using a cellphone while driving a 2,000 lb. automobile at 65 MPH? The problem is worse for teenagers, who apparently value social connection and interaction literally more than life itself.
The Cellphone Use Ban Debate
Critics of over-reaching cell phone laws say that it makes no sense to legislate the use of hand-held electronic devices but ignore driver behavior including eating fast food, controlling children in the backseat, or applying make-up while driving. They point out that an outright ban on cell phone use in the privacy of one’s own car is a “preemptive regulation”, and such regulations are often misused or overused by state agencies and are currently based on less than reliable information. Such regulations and hastily-passed laws tend to be driven by emotional manipulation rather than sound empirical data. Conflating “distracted drivers” with accidents being caused by cell phone use would be a costly mistake, especially when it addresses a risk that causes at most 2.9% of traffic-related deaths. Laws governing what we do in our cars are also hard to enforce. In an effort to protect the liberty of drivers, states like Louisiana which have passed new laws governing cell phone use have also passed additional legislation prohibiting the stopping and searching of a vehicle for suspected failure to comply with the new cell phone laws. At the very least, it is a slippery slope.
Technology today has advanced to the point where smart phones are used to play music in a car to the exclusion of CD players, radios, and other devices. They often have better GPS systems than the car itself. They have features such as Waze, the world’s largest community-based traffic and navigation app. They can also serve as radar detectors. Banning cell phone use completely results in the state telling its citizens that they cannot make use of some of today’s most helpful technologies while traveling. If any use of cell phones while driving is forbidden, should also the use of other portable devices such as iPods – frequently used for a source of travelling music – be banned?
A similar debate raged when state legislatures began passing laws mandating the use of seat belts and other passive restraints (e.g., air bags) in 1985. A 1977 Gallup poll revealed that Americans overwhelmingly (78%) opposed a law calling for a $25 fine for failure to use a seat belt. In 1982, the number was still 75%. State seat belt laws came into being because the federal government tempted automakers into lobbying the state legislatures (something the Department of Transportation (DOT) cannot do by law) to pass seat belt laws in exchange for the federal government not forcing them to install expensive air bags at the time.
Critics of the new cell phone laws point out that a more personal liberty-friendly approach to the use of government regulations should require a state agency to first prove that the proposed criminalized action is the cause of an undesirable effect and that the banning of the action will significantly help the problem. To date, there have been no studies conclusively parsing the different effects of cell phone usage as opposed to other driver-distracting activities.
History has also taught us that passing a law doesn’t always curtail the undesirable activity. Prohibition comes to mind-and so do strict gun laws. However, technology may succeed where legislation fails. New technologies are being developed which make it impossible to text or place a cell phone call while driving. New phone apps, including Apple’s CellControl, disable the ability to text, e-mail, surf the web, play games, Tweet, post to Snapchat and Facebook, take selfies and much more while driving a vehicle. It is likely only a matter of time before class action suits against cell phone manufacturers are filed, claiming that the phones should be made with currently-available technology that prevent them from being used while in motion or while driving.
No matter your thoughts or opinions on the proliferation of state laws governing the use of cell phones while driving, there is no denying that driver cell phone use is, at the very least, a growing source of driver distraction. Lawyers and insurance claims professionals should be familiar with the nuances of cell phone use laws in the states in which they conduct business. State legislatures are scrambling to make their roads safe by passing laws which prohibit dangerous activity yet do not totally infringe on the personal liberty of Americans. It is no easy task. A defendant’s use of a cell phone at or around the time of an accident is easy to determine and can be particularly damaging in a negligence lawsuit wherein the defendant’s actions are being scrutinized. When litigation is involved, the comparative fault of both drivers becomes the main focus. Each state has a system of comparative fault or contributory negligence which requires a judge or jury to allocate 100% of fault for an accident between the plaintiff and defendant. Evidence that a plaintiff was using a cell phone and texting at the exact time the accident occurred can and will be used by a jury to limit the damages awarded or find for the defendant.
Technology Preventing Cellphone Use While Driving
If common sense and lessons learned hard can’t stop the rise of the dangerous practice of using a cellphone while driving, perhaps more technology can. Cellphone-blocking apps and devices help drivers stay focused on driving by preventing them from making or accepting calls, texting, or accessing the internet while the vehicle is in motion. Cellphone-blocking technology is most often an app for smartphones and is available from wireless services and companies that specialize in these apps. In 2012, the National Transportation Safety Board sent a letter to the wireless industry association, urging manufacturers to prevent drivers from using their phones while driving. The manufacturers responded that the technology is embryonic and unreliable. They stress that the problem is how to shut off the driver’s service without shutting off the service of a passenger or someone riding on a bus or train. New technology employed in phone-blocking apps can be activated by adding a service to a wireless plan, downloading an app onto your phone (many apps are free) or installing a device in your vehicle to put a “geofence”—also referred to as a virtual barrier—around the driver. All phones have online dashboards that allow customers to set up accounts and choose settings.
America is the innovation leader of the world, and the demand for effective technology to solve this serious problem is rapidly evolving. The safety of Americans old and young is literally riding on it. Despite the fact that 74% of parents have told their teens to turn off their phones while driving, recently surveys almost needlessly underscore what parents already know—it’s still not enough to prevent distracted driving. According to a Pew survey, 40% of all American teens say “they have been in a car when the driver used a cell phone in a way that put people in danger.” A study by the Virginia Tech Transportation Institute found that “text messaging creates a crash risk 23 times worse than driving while not distracted.” And 11% of drivers aged 18-20 who were involved in an accident and survived admitted to either sending or receiving texts when they crashed according to the Federal Communications Commission.
Pending Litigation Against Cellphone Manufacturers
Lawsuits are now being filed against cellphone manufacturers such as Apple, contending that they knew their phones would be used for texting while driving, but despite the ability to include mandatory apps and controls on their products which would have prevented their use while driving, they refuse to do so. The product liability case has brought to light a piece of evidence that legal and safety experts say puts Apple in a quandary — one it shares with other wireless companies. In Apple’s case, the evidence produced in these lawsuits has revealed that the company has a patent for technology designed to prevent texting while driving, but it has not deployed it. Apple, Verizon, and AT&T all caution about the risks of distracted driving and acknowledge that laws and public education aimed at preventing it are not working. To lawyers, this means it is foreseeable to them that their product can be used for illegal, dangerous and sometimes deadly activity. AT&T even suggests that cellphone use has addictive qualifies, but they still offer only manual—not mandatory—ways of shutting down the phone while driving. In 2012, the National Transport sent a letter to the wireless industry association urging the companies to prevent drivers from using their phones while driving.
Current Laws Governing Use of Cellphones
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. 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.
The views and opinions expressed in this article are those of the author and does not necessarily reflect the views of Matthiesen, Wickert & Lehrer S.C. or its attorneys. If you have any questions regarding the application of these laws to your claim, contact Gary Wickert at gwickert@mwl-law.com.
