V. Litigation
The dramatic increases in morbidity and mortality due to distracted driving, coupled with expanded research and broader public awareness, has led to an increase in lawsuits involving negligence claims based on distracted driving. Such cases require special considerations during the investigation and discovery.
•A. Investigation
The investigation of a crash should always include looking for evidence of driver distraction. Usually, the pre-suit investigation begins with the "Factors and Conditions" section of the Form CR-3 Texas Peace Officer's Crash Report, which is the current report form for crashes that occurred after January 1, 2010. Factor 72 is listed as "Cell/Mobile Phone Use." The police report may also list a cell phone number for the driver, which can then be used to do an online search on web sites such as www.intellius.com to determine the cell phone provider. With this information, you can attempt to get the driver's cell phone records, but this will likely require a subpoena. Also, look for items either in the car or from accident photographs that suggest driver distraction such as charger cords, DVD cases, MP3 headphones, mounting brackets for MP3 players, cell phones, GPS devices, and built-in devices such as satellite radios, navigation systems and video players.
Witnesses' interviews should include questions about whether the driver was using a cell phone, MP3 player, DVD player or laptop computer or was otherwise distracted. Witnesses' recollections about the driver looking down, having only one hand on the steering wheel, or not looking forward are all indications of distraction.
With regard to commercial cases, counsel will need to put the driver and his/her employer on notice to preserve every document related to the collision, including driver's logs, satellite tracking information, operational documents, e-mails, cell phone records, and data in the truck's onboard "black box." The Federal Motor Carrier Safety Regulations allow trucking firms to discard much of this information after six (6) months, so stipulated preservation is required.[i]
B. Written Discovery
It is essential that a lawyer's templates for interrogatories, request for production and preservation letters be modified and expanded to include more detailed and current language for distracted driving cases. Below are some important considerations for accidents involving both commercial and non-commercial vehicles.
Some wireless service bills do not itemize the call/text usage. In that situation, it is necessary to obtain a "call detail record" (CDR) from the wireless service provider. A CDR is computer log record containing data unique to a specific communication (call, data or text) that is used by the wireless service provider for monitoring, accounting, and billing purposes.[ii] CDRs contain information such as the origination and destination addresses of the communication, the time the communication started and ended, and the duration of the communication. CDR provides one of the most comprehensive and potentially valuable pieces of evidence for distracted driving litigation. Often, the CDR must be obtained via subpoena as the wireless service providers will not release that information voluntarily.
Ensure that records/bills for handheld devices include information on ALL electronic data transfers created by texting or emailing. Demand the complete record/bill so that the times of specific transfers can be tracked. Consider asking for records/bills for all devices from all passengers who were in the vehicle at the time of the accident. They may provide insight into potential driver distractions. Some providers keep these records only for a short time, so it is imperative to preserve them as soon as possible.
There are other avenues for retrieving and tracking emails. Many handheld devices save emails sent by the user in a main server's "sent folder." Also, if the device is owned by a business the emails might be backed up in the company's server. Consider discovery requests and subpoenas to the driver's employer to obtain information on emails that may have been deleted from the device, but that are still archived on the server.
Obtaining the identity of the recipients of all calls, e-mails, and text messages that were transmitted around the time of the incident will provide another avenue to locate witnesses who can provide information about how the communication may have affected the driver.
Obtain the identity of the person who pays for the electronic device. If the driver's employer pays the bill, this information may be useful in establishing both direct and vicarious liability.
Preservation letters should be updated to reflect new technologies found in commercial vehicles. Trucking companies keep records from onboard electronic equipment that is used for load tracking, fleet management, dispatch communication, and electronic logging. For instance, regulatory authorities have begun approving log systems that allow drivers to make log entries electronically through the tractor's satellite communication system. Ask that the record of when electronic logs were created be preserved. A driver entering log information while driving is clearly not paying attention to the road.
Some devices require creativity in determining whether or not they were in use at the time of an accident. For instance, MP3s are typically loaded or synced with a computer, where the contents are stored and new items, song or videos are downloaded. One of the most popular MP3 programs, iTunes, displays the date and time the selections were last played. In your preservation letter to the driver, ask that a complete list of device contents be printed and maintained. It is important to make a detailed inquiry into a company's policies and procedures which provides insight into a company's commitment, or lack thereof, to preventing distracted driving accidents. Does the company have policies about driver use of electronic devices while operating a vehicle? How does the company determine if policies are being followed? Is the company enforcing/training those who are not abiding by these policies? Do the company's policies and procedures for driver hiring, training, employee manuals, safety, dispatch, discipline, accident classification, and accident reports address distracted driving and electronic device use while driving?
Don't forget to request sign-in sheets showing driver attendance at company safety meetings/seminars and any documents distributed to drivers and employees at these meetings that relate to distracted driving.
•A. Depositions
When preparing to depose a driver or passenger, it is imperative to know both what electronic devices were in the vehicle at the time of the accident, and how that technology works. Without an understanding of a device's functionality, it will be difficult to tailor questions to determine if the device caused driver distraction. For instance, let's assume a driver in an accident was operating an SUV equipped with a GPS navigation system. To establish that the system was possibly the source of driver distraction it would be important to know if the system has a function that prevents programming the GPS while the vehicle is in motion. In addition, even if the system does have this safety function, does it allow the user to zoom in and out while operating the vehicle or manually manipulate the map by scrolling in a particular direction? Are there other GPS functions that can distract the driver while operating the vehicle? Without being educated in how a devices works, this type of inquiry would be incomplete at best.
In cases where the driver is operating a commercial vehicle, you will need to depose the company's safety director. Ask the safety director detailed questions about the electronic devices used in company vehicles, both company and driver owned, and what are the company's policies regarding the use of those devices. Also, how does the company ensure that these safety policies are being implemented and enforced? Next, depose the dispatcher who was on duty at the time of the accident. Ask about their knowledge of the wreck, what communication they had with the driver, and what technology the dispatcher used to communicate with the driver before and after the accident. In addition, ask the dispatcher about how they normally communicate with drivers, what policies are in place regarding those communications, and what is the dispatcher's role in ensuring those policies are carried out.
•B. Experts
Some cases warrant the retention of an expert to establish or refute cause and liability in distracted driving cases involving electronic devices. In cases where it is disputed whether the driver was using an electronic device, accident reconstruction experts can provide testimony about visibility and perception/reaction times that give circumstantial evidence of driver distraction. A human factors expert may be employed when there is evidence of electronic device usage to testify about the effect of such usage on driver attention.
•C. Distracted Driving Verdicts
A general survey of Texas verdicts provides anecdotal evidence that Texas juries will hold both defendants and plaintiffs liable for distracted driving. There are dozens of verdicts where defendants were found either wholly or partially liable for using a cell phone in some fashion at the time of an accident. In a rare texting case, a jury awarded $20 million in exemplary damages to the plaintiffs where the defendant veered into the plaintiffs' daughter's lane, striking and killing her. Cell phone records were presented at trial showing that the defendant sent and received several text messages at approximately the time of the accident.[iii] In other cases where juries awarded large verdicts for fatal accidents, plaintiffs presented call records showing that the defendants' cell phones were ringing or in use at the time of the accident. Even in common fender bender cases, evidence of cell phone use by the defendant helps to establish liability.
VI. Distracted Driving Defense
Distract driving is not just a sword for plaintiffs. Defendants have been successful in asserting driver distraction as an affirmative defense. Texas juries have found plaintiffs contributorily negligent for being on their cell phone at the time of the crash. Defendants have also successfully contested gross negligence claims by presenting evidence that at the time the wreck occurred, there were no applicable local or state laws banning the use of cell phones while driving.
VII. Alcohol
As mentioned above, driving while under the influence of alcohol is most often referred to as impaired driving rather than distracted driving, though the consequences are very similar. A person is considered legally intoxicated in a criminal context if their blood alcohol content (BAC) is .08 or higher.[iv] In a civil context, any alcohol use may be considered by a jury in determining negligence regardless of the driver's BAC.
Determining the driver's BAC is not usually difficult when the police have arrested the drunk driver. However, finding out where the drunk driver was served alcohol is not always as simple. Police and prosecutors are focused on the conduct of the driver, not the alcohol service provider. The criminal prosecution usually starts and ends with the BAC. It is the rare occasion that the police investigation or the criminal prosecution focuses much attention to where the drunk driver got drunk. Yet, in the civil arena, the identity of the alcohol service provider is of the utmost importance. So, how do you find that information?
The drunk driver may tell you where he was served if there are no criminal charges pending. If criminal charges are pending, the drunk driver will usually not speak and will assert his Fifth Amendment rights against self incrimination. At times, the civil or criminal defense lawyer may informally provide information of the alcohol service provider, but that professional courtesy cannot be depended upon.
The alcohol service provider may be identified through interviews of friends and family members of the drunk driver. In some cases, these witnesses will provide information to news reporters that they will not provide to lawyers.
Another way to identify the alcohol service provider is to follow the money trail since the drunk driver had to somehow pay for the alcohol. Credit card, debit card, and ATM card statements will provide vital information about the drunk drivers purchases on the day of the crash. This third-party documentary information is not protected from discovery by the Fifth Amendment.[v] Financial institutions will not disclose this information without a subpoena or court order. Timing is always an issue in alcohol related cases because of the statute of limitations clock that is always ticking. A lawsuit may be necessary early in the representation to gain the power to subpoena documents.
VI. Conclusion
Electronic devices and driving have become a way of life. More complex and mobile devices are put on the market every day. Devices that will be commonplace next year may not have even been contemplated by consumers today. Who would have guessed 10 years ago that we would all need a smart phone? These new products offer new programs, applications, and functions, but also new distractions for users who are often also drivers. It is imperative that lawyers who deal with the consequences of these distractions be current on the new devices that enter the market, what laws and regulations are in place to combat these distractions, and how to use the discovery process to develop the evidence necessary to prove driver distraction. Juries in Texas are taking driver distraction into account, and so should you.
[i]. Federal Motor Carrier Safety Administration, Interstate Truck Driver's Guide to Hours of Service, Pg. 7 (July 15, 2011) http://www.fmcsa.dot.gov/rules-regulations/truck/driver/hos/fmcsa-guide-to-hos.PDF.
[ii]. Webopedia.com, Call Detail Record (Jun 11, 2011), http://www.webopedia.com/TERM/C/call_detail_record.html.
[iii]. Small v. Vestal, 2010 WL 2150946.
[iv]. Tex. Penal Code §49.01(2)(B).
[v]. See, Fisher v. U.S., 425 U.S. 391, 96 S.Ct. 1569 (1976).
