By Brian C. Dever, Esq.
About 15 years ago I represented a young lady who was injured in a head on car accident that occurred at about 2:00 a.m. The driver of the other vehicle crossed the center lane. The primary focus on the case was that the other driver was drinking and driving. The bulk of the discovery on the case revolved around where he had been earlier in the evening. The defense lawyer on the case had done a good job of preparing him for his deposition. There was limited credit card records of how much he had to drink and a blood alcohol content had not been done on the driver post accident. Still, the young professional had quite a night before this horrible accident.
I did have photographs taken by Patriot Ledger photographer who had been at the scene of the accident. I noted in one of his photographs that the at fault driver’s car had a cell phone antenna. After asking all the questions about where the driver had been that evening for the Liquor Liability Claim, I then followed up with questions regarding his cell phone use. At that time the lawyer representing the defendant was horrified because she had not thought of preparing the client on this issue and had no idea what his testimony was going to be. Thereafter, I got dramatic testimony from the driver that he had gotten a phone call from his wife inquiring as to where he was. He reached for the phone when it rang and began talking to his wife. The driver acknowledged that he had taken his eyes off the road for ten seconds before impact. He literally counted 1000, 1001, 1002 etc.
As someone who drives 35,000.00 miles a year and is frequently on the road it is clear to me that the bulk of the drivers on our roads are on a cell phone, whether it is hands free or otherwise. Regardless, they are distracted. It is not healthy. You can tell by the way they are driving. Their inability of keeping in their lane and their inattention to the line of cars that are backing up behind them. The reality is that they are causing accidents.
Recently, the Standard Magazine a New England Insurance Weekly has published data that in addition to talking on the cell phone, drivers 18-29 are accessing the internet while on a cell phone. They report that the increase in internet access while driving has increased from 29% in 2009 to 48% in 2012. The statistical data is that smart phone ownership is on the rise. Accessing the internet on a cell phone is on the rise. Reading social media while driving is on the rise and updating social networking while driving is on the rise.
The statistical data indicates that as drivers get older, the use of smart phones decreases. However, the data suggested that 72% of drivers strongly agreed with laws or regulations prohibiting texting or emailing behind the wheel. However, almost 23% of people poled believe that laws governing cell phone use while driving are enforced to little or no extent. Clearly this problem is getting worse. It is causing accidents. Frankly, it is making my job easier because if someone is on the phone at the time of the accident it is understood by all, that the cell phone driver was not or could not be paying their full attention to the roadway. To suggest otherwise is absurd. Since cell phone use often occurs in an automobile accident and automobile accident recoveries are often limited by insurance coverage then as we, as attorneys, try to get creative in looking for more coverage. One way additional coverage has been obtained is if a person is texting in the course and scope of their employment. That can lead to additional coverages through the business.
We continue to monitor this situation. We continue to ask in depositions and trial practice whether or not there is cell phone usage involved in an accident. It is becoming much more common and creating better liability on our automobile accident cases. However, our advice to our clients is to stay safe. Do not use your cell phone while driving.