Distracted driving is such a major public health threat that the National Association of Mutual Insurance Companies has referred to it as an “epidemic.”[1] According to the Centers for Disease Control and Prevention (CDC), “Each day in the United States, approximately nine people are killed and more than 1,000 injured in crashes that are reported to involve a distracted driver.”[2] The National Highway Safety Administration states that there were 3,477 fatalities caused by distracted driving in the United States in 2015, and more than 391,000 injuries.[3]

Types of Distractions

According to the CDC, driving distractions can be categorized into three types:[4]

  1. Visual distractions.These are distractions that cause a person to take their eyes off the road. Cell phones, passengers, and dashboard controls are all major culprits, as well as distractions outside of a vehicle.
  2. Manual distractions.Manual distractions are those that cause a person to take their hands off of the wheel. Holding a cell phone, eating, or reaching to grab something would all be examples of manual distractions.
  3. Cognitive distractions.These are distractions that take a person’s mind off the road. The most common cognitive distraction that occurs is a driver becoming engaged in a conversation, either with a passenger or someone outside of the car.
  4. Common Causes of Distracted Driving

    Many of these stem from technology. These are some of the major causes of distracted driving in the United States:

    • Texting.Texting is perhaps the most dangerous habit that drivers have. A 2009 study found that texting and driving was six times more likely to cause an accident than a driver who is not texting.[5] Texting is unsurprisingly a major cause of teen accidents. However, it is actually the slightly older demographic of adults between the ages of 21 and 24 who are most likely to send a text or email message while driving, according to survey results.[6]
    • Checking email, using apps, or other phone functions.Using a phone to access apps, music, or any other functions is just as dangerous as texting. In recent years, the rising use of apps in particular has been a cause of accidents. For instance, one recent study suggested that the popularity of Pokemon Go was causing numerous accidents on the road because addicts of the game sometimes try to play as they drive.
    • Talking on the phone.Holding a cell phone and talking on one produces a manual and cognitive distraction to the driver. Although hands-free use of a cell phone is much safer, research has shown that even hands-free cell phone use can be dangerous because of the cognitive distraction it produces.
    • Eating and drinking.At one time or another most people have probably had a snack behind the wheel. Eating and drinking while driving presents a risk because it is a major manual distraction, particularly if food or drink spills.
    • Distractions outside of the vehicle.These are visual distractions, such as roadside advertisements or pedestrian traffic on the sidewalk.
    • Any other multitasking.There are countless other ways a person could be distracted trying to multitask as they drive. Anytime you are taking attention away from your driving to do something else, it can be a problem.

    According to reporting byThe New York Times (NYT),drivers are eight times more likely to be in an accident if they are texting, and a driver talking on the phone is just as likely to get into an accident as a driver that is legally drunk. Overall, according to the report, distracted drivers are four times more likely to be in an accident.

    Why Do Drivers Ignore the Risks?

    Despite extensive research proving the dangers of distracted driving, drivers continue to allow themselves to be distracted. A video published by theNYTfeatured driver interviews in which the drivers talked first-hand about their distracted driving habits. [7] As theNYTaptly summarized the contents of the video: “Most people are aware of the dangers of trying to multitask while driving, but most continue to do it anyway.”

    This phenomenon is no doubt a combination of drivers underestimating the risk that a distraction will pose, overestimating their own abilities, and sometimes simply not thinking about what they are doing at all.

    Legal Implications of Distracted Driving

    Nearly every state has a statute making it illegal to text and drive. In fact, only Arizona, Missouri, and Montana lack a law specifically prohibiting texting and driving.[8] Texas was the most recent state to pass an anti-texting law when it became the 47th state to do so in 2017.[9] These laws have a huge range of penalties depending on the state. California imposes just a $20 fine for first time violators,[10] and Pennsylvania levies just a $50 fine.[11] On the opposite end of the spectrum, Alaska imposes up to a $10,000 fine and a year in jail for someone convicted of texting and driving.[12]

    Most of these state laws prohibit not only texting, but all reading or text-based communications from a cell phone while driving. Most states also specify in these laws that it is only illegal to text and drive while a vehicle is in motion; however the language of a few states’ laws make it illegal to text while a vehicle is being “operated,” which would include times when the vehicle is stopped in traffic or at a light.

    An additional 15 states prohibit using a hand-held cell phone while driving to talk, 38 states ban cell phone use for drivers under a certain age, and multiple cities and counties nationwide have additional laws.[13]

    In every auto accident case, whether the drivers involved were distracted at the time of the accident is a major issue. And every personal injury attorney worth their salt will take time to investigate this issue. It is not unusual for an attorney to interview eyewitnesses or subpoena phone records or other electronic records to discover if an opposing party was using a phone at the time of an accident. If an auto accident victim can prove that the other driver involved was distracted at the time, they will very often be able to prove that the other driver was at-fault in causing the accident.

    Moreover, in most states, a driver that is involved in an accident while violating an anti-texting statute will be presumed negligent. This means that the elements of duty and breach will be presumed and the plaintiff need only prove causation. For instance, Pennsylvania has long recognized that a violation of a statute or ordinance creates a presumption of negligence, or what Pennsylvania law refers to as negligenceper se. To win a claim under a theory of negligenceper sein Pennsylvania, the plaintiff must prove the following four requirements:

    1. The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally.
    2. The statute or regulation must clearly apply to the conduct of the defendant.
    3. The defendant must violate the statute or regulation.
    4. The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries.[14]

    In the context of an accident caused by a driver that was texting, this means that a plaintiff must prove:

    1. That the anti-texting law was meant to protect them. The law is meant to protect anyone that could foreseeably be harmed by a distracted driver, so this requirement will practically never be a contested issue.
    2. That the driver was “using an interactive wireless communications device to send, read, or write a text-based communication.”[15]
    3. That the driver was doing so “while the vehicle was in motion.”[16]
    4. That the accident was caused because of the defendant’s violation of the anti-texting law. Just because a defendant was texting and driving does not necessarily mean that they caused an accident. This requirement can often be difficult for a plaintiff to prove, especially if an accident had multiple possible causes or if the plaintiff was partially at-fault.

    It should also be remembered that any evidence that a driver who caused an accident was distracted could also be used by prosecutors in a criminal case. For instance, if a driver caused a fatal accident by running a red light, a prosecutor may decide to charge that driver with vehicular manslaughter if it is discovered that they were sending an email at the time.

    Comparing Anti-Distracted Driving Laws of Pennsylvania, New York, and New Jersey

    Pennsylvania law prohibits texting and reading from a phone by a driver while the car is in motion. The New York and New Jersey laws go much further. New York and New Jersey are two of the fifteen states in the nation that also prohibit talking on a hand-held cell phone while driving.[17] And, while Pennsylvania only fines violators $50 for a first-time offense, in New York and New Jersey first time offenders can be fined hundreds of dollars.

    While Pennsylvania and New York laws specify that a vehicle must be “in motion” in order for a driver to violate the law by texting, New Jersey law states that an “operator” of a motor vehicle is prohibited from holding and using a cell phone. New York law adds, however, that drivers may not use cell phones when onlytemporarilystopped on a public highway (for instance, in traffic or at a light), unless they have pulled completely over.

    The New York law is also broader than the Pennsylvania and New Jersey laws in that it prohibits the use of all “portable electronic devices.” The New Jersey law prohibits “use of a wireless telephone or communication device,” and Pennsylvania law prohibits using “an interactive wireless communication device.”

    The New York anti-distracted driving law is also harsher in another key way: a violation adds three points to an offender’s license. In both New Jersey and Pennsylvania, violating the anti-distracted driving lawdoes notadd points to an offender’s license.

    Finally, it is also important to note that all three states recognize that the violation of a state statute can constitute a finding of negligenceper sein the event that there is an accident.[18]

    Relevant Excerpts From PA, NJ, and NY Anti-Distracted Driving Laws

    Pennsylvania law states that:

    No driver shall operate a motor vehicle on a highway or trafficway in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion.[19]

    New York law states that:

    No person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.[20]

    New Jersey law states that:

    The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free.[21]

    Contact the Marrone Law Firm, LLC for Legal Assistance Today

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    Legal References Cited:

    [1] Lindsey Robinson, NAMIC,The Distracted Driving Epidemic,available athttps://www.namic.org/in/1001_feat1(last accessed 01/03/2018).

    [2] CDC,Distracted Driving,available athttps://www.cdc.gov/motorvehiclesafety/distracted_driving/(last accessed 01/03/2018).

    [3] See National Highway Traffic Safety Administration,Distracted Driving,available athttps://www.nhtsa.gov/risky-driving/distracted-driving(last accessed 01/03/2018).

    [4] Id.

    [5] JoAnne Allen, Reuters,Texting driver 6 times more likely to crash: studyhttps://www.reuters.com/article/us-drivers-texting/texting-driver-6-times-more-likely-to-crash-study-idUSTRE5BK3QA20091221 (last accessed 01/03/2018).

    [6] See National Highway Traffic Safety Administration,Distracted Driving,available athttps://www.nhtsa.gov/risky-driving/distracted-driving(last accessed 01/03/2018).

    [7] NYTs,Distracted Drivers,July 18, 2009, available athttps://www.nytimes.com/video/technology/1194841442782/distracted-drivers.html(last accessed 01/03/2018).

    [8] See GOVERNORS OFFICE OF HIGHWAY SAFETY,Distracted Driving,available athttps://www.ghsa.org/state-laws/issues/distracted%20driving(last accessed 01/03/2018).

    [9] ABC NEWs,New Texas laws go in effect on Sept. 1, August 2, 2017, available athttps://abc13.com/politics/new-texas-laws-go-in-effect-on-sept-1/2265959/(last accessed 01/03/2018).

    [10] Cal. Vehicle Code § 23123.5

    [11] 75 Pa.C.S.A. § 3316

    [12] Alaska Stat. § 28.35.161

    [13] See GOVERNORS OFFICE OF HIGHWAY SAFETY,Distracted Driving,available athttps://www.ghsa.org/state-laws/issues/distracted%20driving(last accessed 01/03/2018).

    [14] Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa. Super 2014)

    [15] See 75 Pa.C.S.A. § 3316 (Pennsylvania law prohibiting text-based communications while driving).

    [16] Id.

    [17] NJ Rev Stat § 39:4-97.3 (2013); NY Veh &; Traf L § 1225-D (2014) (Both of these states offer an exception for individuals in an emergency situation)

    [18] See Dolson v. Anastasia, 55 N.J. 2, 258 A.2d 706 (1969); Utica Mut. Ins. Co. v. Paul Mancini &; Sons, 9 A.D.2d 116 (1959).

    [19] 75 Pa.C.S.A. § 3316

    [20] NY Veh &; Traf L § 1225-D (2014)

    [21] NJ Rev Stat § 39:4-97.3 (2013)