Cell Phone Use Can Lead To Punitive Damages Claim In Auto Accidents

 In Personal Injury

We all have been warned of the dangers of texting and driving at the same time. That’s just common sense. But did you know that several Florida judges have now held that allegations of using a cell phone while driving (even if using hands-free or Bluetooth) can result in a claim for punitive damages being allowed if the driver is involved in an accident? I thought that was all but impossible until I saw the motion and court orders allowing injured persons to include a claim for punitive damages against the driver when the driver is alleged to be talking on a cell phone at the time of the accident.

In Florida, it is currently not illegal to drive and talk on a cell phone. Although several states have laws that require hands-free or Bluetooth use while driving, Florida has not yet done that. However, several attorneys have successfully been allowed to amend their lawsuits to request a jury consider punitive damages against a defendant driver who was talking on his/her cell phone at the time the accident. How is this possible? Here is the roadmap to how it is done…

Punitive Damages and Florida Law

Florida statute 768.72 is the Florida law on pursuing punitive damages. Within this statute there is a restriction against initially filing a lawsuit that includes punitive damages. Instead, a plaintiff must file a motion asking to amend the lawsuit and “proffer” whatever proof they have that they contend supports the claim for punitive damages. The defendant does not get to contest or argue against this proof. It is a one-sided argument, and all the judge is deciding is whether there is some bare minimum evidence that would eventually allow a jury to consider punitive damages. This statute essentially allows a plaintiff to amend their lawsuit with a very minimum level of proof or support for the claim.

Driving while talking equates to driving while intoxicated.

In 2006, Prof. David Strayer of the University of Utah published his paper,“A Comparison of the Cell Phone Driver and the Drunk Driver.” Essentially, although there is great criticism of the foundation of the study, using a cell phone distracts drivers almost the same way that driving while intoxicated does. The study compared drivers talking on a cell phone with drivers who were drunk. A review of this study suggests there is a flaw in how the study was done. The study did not include a test group of drivers talking to fellow passengers. That is an important flaw to point out should you ever be faced with this type of punitive damage request. However, as indicated above, this is a one-sided argument, and you won’t get to suggest those flaws until moving for summary judgment or raising Florida’s new expert witness evidence code.

Although I think the study is flawed, there now appears to be additional support through AAA funded studies that were recently released in 2013. AAA Foundation for Traffic Safety has published these reports entitled “Measuring Cognitive distractions in the Automobile” and “Cognitive Distraction: Something to Think About.” The net effect of all of these studies is that there is more than sufficient to “proffer” in order to sustain the burden that somebody has under Florida law to ask for permission to seek punitive damages.

How can this help a personal injury attorney?

Practitioners seeking personal injury damages against negligent drivers would do well to inquire with their clients as to whether the defendant driver was on their cell phone at the time of the accident. I was recently interviewing a new client and, without inquiry by me, the new client’s husband said he could see that the adverse driver was on his cell phone at the time the accident happened. Although I disagree with the concept that talking is a distraction, it appears these studies provide more than sufficient support to seek punitive damages in a standard run-of-the-mill automobile accident case where one can proffer that there was cell phone usage leading up to the accident. Obviously, you need to be able to allege and present some proffer that the defendant was on his/her cell phone. Doing so may be problematic, but if you have the sworn testimony of your own client, a passenger or some other witness that they saw the defendant driver on their cell phone moments before impact, I think you have more than sufficient evidence in order to sustain your proffer obligation under Florida statute 768.72.

Up until recently, I had never heard of the 2006 study. However, after having searched the Internet for additional information on the author, and having reviewed the reports and publications contained on the AAA Foundation for Safety website, I am not so convinced that drivers can’t be distracted by the simple act of talking. After all, if we are on a hands-free or Bluetooth connection, what’s the difference between that and talking to a passenger? Does this mean that drivers who are talking to their passengers moments before an accident occurs can also be pursued for punitive damages? There is a strong argument to be made that there’s no difference between talking on a cell phone using hands-free technology and talking to a person in the vehicle with you.

Because of the recent amendments to Florida’s evidence code on expert testimony I predict there will be many hearings coming up in which the 2006 and subsequent reports are attacked as being insufficient and unsupported under the new evidence code. Last year’s expert testimony amendment and the recent Perez vs. BellSouth opinionseem to suggest that pure opinion expert testimony is no longer allowed if it is not supported by scientific evidence or studies. In the long run, I think the appellate courts are going to have serious problems with an argument that hands-free technology talking is different than talking to a passenger. Perhaps it is the fact that all of this technology is new that is interfering with driving. Either way, this issue is not going away anytime soon.

Can an employer be held responsible for employee punitive damages?

On another issue, can an employer be held responsible for an employee being involved in an accident while talking on the cell phone? We all know that under the 1981 opinion of Mercury Motors v. Smith, 393 So.2d 545 (Fla. 1981), employers can be held responsible for punitive damages assessed against an employee if there is “some fault” alleged and proven against the employer that led to the circumstances that resulted in the punitive damages being assessed against the employee. Incidentally, although punitive damages are not covered by insurance as a matter of Florida’s public policy, the derivative liability of an employer for punitive damages assessed against an employee is covered under many liability policies.

Should all employers now have a written policy forbidding employees from driving and talking on their cell phone? Several employers, including our firm,LaBovick Law Group, have now implemented such a policy. In fact, recently I even read an email from a local attorney who was talking to an adjuster for the insurance carrier regarding a client’s claim. When the adjuster discovered that the attorney was talking to him while driving, the adjuster concluded the discussion and indicated that per the insurance carrier’s new policy, he was forbidden from continuing the discussion when he knew that the attorney was talking and driving.

As another aside, are we soon going to see litigation against the cell phone companies, cell phone manufacturers or automobile manufacturers claiming that putting these products into the stream of commerce while knowing they are a hazard creates liability? What happens when a state indicates that cell phone use can only happen using a hands-free system? Does that negate liability when using such a device? I’ll bet it does. We will probably soon see the Florida legislature legislate this issue out of existence. I’m hoping it does as I certainly don’t think that talking on a cell phone should subject anyone to punitive damages.

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