Sunday, March 7, 2010

Cell Phone Use While Driving: Bringing Attention to Inattentive Drivers

The following article of mine recently appeared in the February 22, 2010 Pennsylvania Law Weekly.

Hang Up and Drive

Lawmakers and courts tackle the hazards of cellular phone use by drivers

Daniel E. Cummins
The Legal Intelligencer
February 22, 2010


A text message exchange between two drivers:

HI. HOW R U?
U R FUNNY! LOL! TSDMC!…OMG!! JUST IN ACDNT!! GR8!…UFB....IM OK…G2G….B4N…CYAL8R. WILL CALL U. BFF

[Translation at end of article].


There has been a great deal of attention paid to the hot topic of cell phone use and texting while driving, particularly among younger drivers. Whether all this talk results in any changes in the law on the topic remains to be seen.

FYI

"For your information," the U.S. Department of Transportation on Jan. 26 banned commercial truck drivers and bus drivers from texting while driving. Under the ban, commercial truck and bus drivers who text while driving may be subject to civil or criminal penalties and fines up to $2,750.

On the same day, the state House of Representatives approved legislation by a vote of 189 to 6 that bans the use of hand-held cell phones and texting devices by all motorists while driving. House Bill 2070 also amends Title 75 by making texting by junior drivers — ages 16 to 18 — a primary offense.

The bill makes violating the ban a primary offense in Pennsylvania, meaning that a driver could be pulled over by law enforcement for committing that offense alone. A lesser alternative being considered is making the violations a secondary offense, under which an officer could only enforce the law if the driver was first pulled over for another traffic violation.

The primary offense, as it currently stands in the proposed bill, would carry a $50 fine along with supplemental costs. The fine would be increased to $100 and supplemental costs if the violation occurred in a school zone, an active work zone, a highway safety corridor or in an emergency response zone.

HB 2070 will now move on to the state Senate for consideration. The Senate is likewise reviewing its own proposed legislation focused on younger drivers that would lengthen the time a new driver would have to practice before testing for a driver's license, limiting the number of teens in one vehicle and making the failure to wear a seat belt a primary offense for youths under age 18.

According to a Jan. 31 Scranton Times article by Robert Swift, the paper's Harrisburg bureau chief, the challenge for the legislators will be to merge the amendments dealing with teen drivers with the provisions pertaining to distracted drivers into one acceptable bill that would be approved by the Legislature and signed into law by the governor. Whether or not this can be accomplished remains to be seen.

QQ

"Quick Question:" Should a motor vehicle accident plaintiff be allowed to pursue punitive damages on a claim that the defendant driver was on a cell phone or texting at the time of the accident?

The topic of cell phone use by motorists also came up in a Jan. 14, opinion and order in the case of Linehan v. Jaludi. In that case, Judge Gregory H. Chelak of the Pike County Court of Common Pleas addressed the issue of whether a plaintiff may pursue a claim for punitive damages on the basis that the defendant was talking on cell phone allegedly to the point of distraction at the time of a car accident.

The plaintiff in Linehan was a police officer whose police vehicle was stopped on the side of the road with the flashing lights activated. Another vehicle was stopped in front of the plaintiff's police car. The defendant, while driving and allegedly talking on her cell phone, allegedly drifted off the roadway and crashed into the police car while the plaintiff police officer was inside of the car, allegedly resulting in injuries to the plaintiff.

The plaintiff police officer later filed a negligence complaint in which a punitive damages claim was asserted, in part, on the basis of the defendant using a cell phone at the time of the accident. The defendant filed preliminary objections.

Chelak sustained the defendant's preliminary objections and granted the motion to strike the claim for punitive damages. It was held that the allegations of the complaint — that the defendant was so distracted by her cell phone conversation that she crashed into the plaintiff's police car with its flashing lights — were insufficient, in and of themselves, to support the punitive damages claim at this initial posture of the case.

However, citing the U.S. District Court for the Eastern District of Pennsylvania case Pennington v. King as offering support for a punitive damages claim based upon a driver being distracted by cell phone use, the Pike County court noted that, if discovery turned out to confirm the cell phone use and distraction, by way of cell phone records or otherwise, the plaintiff would have the right to seek to amend the complaint in an effort to support the possibility of restating the punitive damages claim pursuant to Rule 1033. It remains to be seen if this issue will develop any further in that case.

S2S

"Sorry to say," but it does not appear that legislative or judicial action will have any significant, positive impact on driver behavior in terms of texting or cell phone use. Around the same time the above action was being taken by the Pennsylvania Legislature and courts on the issue of drivers distracted by hand-held communication devices, the Highway Loss Data Institute coincidentally released a new study Jan. 29 on the topic.

According to a Jan. 30 article by Joelle Tesser of The Associated Press, the study finds that state laws banning the use of hand-held devices to make a call or send text-message while driving have not resulted in fewer crashes.

Yet, other studies by the Highway Loss Data Institute, which is affiliated with the insurance industry and the Insurance Institute for Highway Safety, make it clear that driving while texting or using a cell phone is dangerous. One separate study, issued a few years ago by a group of University of Utah psychologists in the June 29, 2006 issue of Human Factors: The Journal of the Human Factors and Ergonomics Society, has gone so far as to find that using a cell phone while driving may be as dangerous as driving under the influence of alcohol.

According to the AP article, one suggested explanation for the failure of the ban on hand-held devices to decrease the number of accidents in states that currently have a ban (California, New York, Connecticut, and the District of Columbia), is that the ban on the use of hand-held devices may have had the opposite effect of actually increasing such dangerous conduct by drivers.

With these findings that government intervention on the issue of distracted drivers and bans on hand-held devices may not have any effect, or may even have a detrimental effect, other commentators, like well-known Philadelphia lawyer-pundit Michael Smerconish, have cautioned against governmental intervention. The fear is the creation of a "slippery slope logic" for banning or punishing cell phone use may easily be extended to bans or punishment related to distractions caused by eating, using a GPS, scanning the radio, adjusting the heat, putting on makeup, or other commonplace attention-grabbers. Smerconish joins the call for alternative solutions to the problem.

As Smerconish pointed out in his Jan. 31 article in The Philadelphia Inquirer, there is a push by the U.S. Department of Transportation upon the wireless industry for the creation of technology whereby these devices are somehow disabled from use while a person is driving. Smerconish also favors the development of these possible technological advances towards the creation of a hands-free device that is somehow safe for use while driving.

FWIW

"For what it's worth," there has been much recent discussion on this issue in Pennsylvania, but to date, no concrete changes. Whether any of these proposed changes would result in any change in driver behavior in any event remains questionable. For now, it's best to steer clear from these distracted drivers for your own safety.


Translation of text message:

Hi. How are you?
You are funny! Laugh out loud! Tears streaming down my cheeks!....Oh my God! Just got into an accident! Great! Un "freaking" believable! I am okay. Got to go. Bye for now. See you later. I will call you. Best Friends Forever. •


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley, Cognetti, Comerford, Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.



This article originally appeared in the February 22, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

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