Bloomberg Law
April 16, 2018, 11:48 AM

Texting and Driving May Soon Cost You

Bruce Kaufman

Punitive damages are widely used in civil litigation to deter reprehensible conduct, yet historically juries have been frozen out of the chance to punish texters who cause motor vehicle accidents.

The lack of punitive awards against drivers who text and crash can largely be explained by older state laws that required a high level of recklessness and insurers’ desire to settle such claims quickly, attorneys who practice in the area told Bloomberg Law.

But a flurry of new state laws that more clearly target driver texting may finally push a significant number of punitive damages claims in front of judges and jurors, who as drivers and pedestrians are becoming more aware of the everyday, and rapidly growing, risks posed by texting behind the wheel.

“In the 1960s, drunken driving was the paradigm case for punitive damages in automobile cases, and texting while driving may become the paradigm case for the 21 st century-at least until autonomous vehicles take over,” said Catherine M. Sharkey, a professor of law at New York University School of Law.

As more punitive damages claims succeed that, in turn, could prove the strong deterrent that, so far, has been lacking against driving and texting, according to some attorneys.

Plaintiffs’ attorney Steven Gursten, president of the Motor Vehicle Trial Lawyers Association in Dothan, Ala., said that distracted drivers seldom face jail time and fines are minimal.

Consequently, “the status quo provides little to no meaningful deterrent,” said Gursten, a partner at Michigan Auto Law in Farmington Hills, Mich.

But the threat of punitive damages under new state laws enacted over the last 10 years can change the equation when it comes to preventing texting and driving, he said.

“With punitive damages, distracted drivers who put the public and themselves at risk by driving while distracted would now also be putting their life savings, retirement, home, car, boat, kids’ college funds at risk,” Gursten said.

“If they cause a crash and the punitive damages aren’t covered by insurance,” Gursten said, which is the usual case, “then the punitives will have to be paid out of pocket.”

Texting and Distraction

More than 3,400 people were killed and 391,000 hurt in crashes on U.S. roads in 2015 that involved a distracted driver, according to the National Highway Traffic Safety Administration. Texting is one factor in distracted driving, but it wasn’t broken out in the data.

The federal auto safety regulator found in other research that driver texting is on the rise for all ages, but the highest rate is for those between 16 and 24.

And a 2017 study by the AAA Foundation for Traffic Safety found that 87.5 percent of respondents believe distracted driving is a bigger problem now than in past years.

Sending or reading a text takes your eyes off the road for five seconds, NHTSA said. “At 55 mph, that’s like driving the length of an entire football field with your eyes closed,” NHTSA said.

Joel Feldman, whose daughter was killed by a distracted diver in 2009, has litigated motor vehicle cases for 30 years and is the founder of the safety group End Distracted Driving.

Feldman told Bloomberg Law that driving distractions can be categorized three ways: where the driver’s hands are off the steering wheel, where the driver’s eyes are off the road, and where both the diver’s mind and focus are diverted.

Texting involves all three types of distractions, said Feldman, a partner at Anapol Weis in Philadelphia.

Punitives Exceedingly Rare

Despite societal enmity with driver texting, a startling figure emerges in injury cases: Juries are almost never allowed to assess punitives after a driver is found to have caused injuries while texting.

Attorney interviews revealed only a smattering of cases-in Florida, Pennsylvania, Indiana, Alabama, and Ohio-where a claim for punitive damages was even allowed to make it to a jury in a driver texting case.

Gursten cited a 2017 Pennsylvania case and plaintiffs’ attorney David Durkee, a partner at Roberts & Durkee in Coconut Grove, Fla., provided a 2017 Florida case in which the court agreed to allow a jury to consider punitive damages. Both cases settled.

As rare as those cases may seem, actual examples of punitive awards in a driver texting case appear nonexistent.

Neither Durkee nor defense attorney Dan Cummins, a partner at Foley Comerford & Cummins in Scranton, Pa. , has heard of a jury verdict awarding punitive damages against a driver in a texting injury case.

“This is a newly developing theory of the law, so even getting courts to allow such claims has been difficult,” Durkee said.

Feldman said the lack of reported decisions involving awards of punitive damages likely reflects that these cases are so strong for the plaintiff that they are settled, in part, specifically to avoid an award of punitive damages which are not covered by insurance.

State Laws Pave Way to Change

Another reason punitive damages have been so scarce is that courts historically required additional factors before punitive damages would be allowed against a driver, like excessive speed, erratic driving, or disobeying traffic signals.

That is changing, especially as more states enact texting-while-driving bans, Feldman said. But in states like Pennsylvania, it is still wise for attorneys to plead additional facts beyond texting indicating recklessness.

Plaintiffs’ attorney Lindsay M. Keller, a partner at Woods & Thompson in Minneapolis, told Bloomberg Law that judges are more likely to allow punitive claims to proceed when a driver has been charged in the past with multiple texting and driving citations. That’s in contrast, Keller said, to a driver who sends a quick message while driving at a low speed.

Feldman and Gursten said that as societal views against texting while driving harden, judges and juries will follow suit and be more likely to impose money damage punishments in crash cases.

“As people become more familiar (and as attorneys do better jobs of educating jurors) with the science behind the dangers of distracted driving, people will become less tolerant and more justifiably outraged when a distracted driver recklessly puts everyone at risk and, ultimately, injures or kills others,” Gursten said.

In 2006, no state banned texting while driving. Currently, 47 states and the District of Columbia ban text messaging for all drivers, according to the Governors Highway Safety Association.