by J. David Bartenfield on 02/18/12
In my career I have represented thousands of automobile accident victims involved in car wrecks that did not have to happen and should not have happened. I have seen more than a fair share of car crashes and the aftermath caused by distracted drivers and I have tried my best to restore the lives of the victims of distracted driving as nearly as our tort laws will allow.
Most of these distracted driver cases can be categorized into one of three separate and distinct types of distracted driving. The three main types of distracted driving I see in my law practice time and again are:
- Visual-the driver takes her eyes off of the road.
- Manual-the driver takes his hand(s) or feet away from the wheel or pedals; and
- Cognitive-the driver is simply not paying attention and not focusing on driving.
I have seen up close the devastation caused when a visually distracted driver searching for a dropped cigarette runs over a motorcycle and its rider. I have seen a manually distracted driver reaching for a map in the glove box direct his vehicle, and his children, down a ravine and into a tree. I have seen a cognitively distracted driver distraught by a recent break-up collide into a mini-van setting it ablaze.
We frequently see car crashes in our travels and are witnesses to the grotesque shapes of motor vehicles involved in car crashes. Part of the responsibility I owe to my clients is answering not only “how” these accidents happened but “why”. It is the “why” that most often keeps me awake. What I most requently discover is that a driver was distracted either visually, manually or cognitively.
Our tort laws have evolved to deal with our human errors by causing the distracted driver to pay damages in an effort to restore the victims’ lives, as nearly as money will allow. It is an imperfect system. Money can never replace lost opportunity and lost lives. Money cannot correct a limp or make the scars go away. And of course, it is most often an insurance company that does the actual paying of money and it is the rare example when the careless distracted driver ever pays directly.
Our current Motor Vehicle Code in North Carolina deals with these three distinct variations of distracted driving with ever evolving “Rules of the Road”. North Carolina law addresses the three main types of distracted driving in several ways, but most prominently by making it law that drivers must:
- Maintain a proper lookout. This means, simply, keep your eyes on the road and see what you should see. Following this obvious and simple law would have allowed the motorcyclist mentioned above to continue his employment in the United States Air Force.
- Maintain proper control. This means keep your hands on the wheel. Following this rather obvious rule would have prevented a ride down a ravine and the facial scarring of a seven year old girl.
- Operate a motor vehicle using reasonable care. This means if your mind is on something else that prevents you from concentrating on driving, then don’t drive. Following this simple rule would have prevented a high-speed head-on collision and the broken ankles of a retired grandmother.
Now there’s a new and awful distraction that is all around us and growing exponentially. The prevalence of text messaging and the number of text messages sent is doubling every several years. I have witnessed in my law practice a surge in distracted driving cases that has rapidly outpaced drunken driving as the number one needless cause of death and injury. It is the Super Distraction and combines all three of the main types of distraction, visual, manual, and cognitive into one giant attention monster that competes for immediate action like nothing before it.
Lawmakers are watching closely and shaping laws all over the world to deal with the super distraction text messaging has become. These are links I have collected to a few of the most recent strategies of lawmakers in dealing with what I believe to be the single most dangerous hazard of operating a motor vehicle today: text messaging. The law is continuing to evolve and playing catch-up with statistics that are accumulating faster than legislation can be introduced. On September 30, 2009 President Obama issued an executive order prohibiting federal employees from texting while driving on government business or with government equipment. On December 1, 2009 North Carolina anti-texting legislation became effective. On October 27, 2010, the Federal Motor Carrier Safety Administration enacted a ban that prohibits commercial vehicle drivers from texting while driving.
The Center for Disease Control and Prevention (CDC) is also watching and accumulating terrifying numbers.
- Each day, more than 15 people are killed and more than 1,200 people are injured in crashes that were reported to involve a distracted driver.
- In 2009, more than 5,400 people died in crashes that were reported to involve a distracted driver and about 448,000 people were injured.
- When asked whether driving feels safer, less safe or about the same as it did five years ago, more than 1 in 3 drivers says driving feels less safe today.Distracted driving, cited by three out of ten of these drivers, was the single most common reason for feeling less safe today.
- 25% of drivers report that they “regularly or fairly often talk on their cell phones while driving”.
- 75% of drivers 18 to 29 reported that they talked on their cell phone while driving at least once in the last 30 days, and nearly 40% reported that they talk on their cell phone “regularly” or “fairly often” while driving.
- 9% of drivers in the United States reported texting or emailing “regularly” or “fairly often” while driving.
- 52% of U.S. drivers ages 18 – 29 reported texting or emailing while driving at least once in the last 30 days, and more than 25% reported texting or emailing “regularly” or “fairly often” while driving.
North Carolina has enacted anti-texting legislation but is it enough? Here is our anti-texting legislation. Is the threat of a $100 fine enough to rein in the Super Distraction text messaging has become? I don’t think so. My research has indicated that only a handful of individuals have been prosecuted under North Carolina’s anti-texting measures and the North Carolina Highway Patrol has stated that enforcement is difficult because of the near impossibility of determining whether a driver is illegally sending a text message or legally dialing a telephone number.
In my opinion text messaging is quickly on the verge of becoming the new DWI. In the very near future I expect to see our sluggish legislature respond to the increasing documented connection between cell phone use and car crashes by following a New York type model that full out bans the use of cell phones and portable electronic devices by drivers.
One possible alternative to an all-out ban on cell phone use by drivers would be to add some teeth to our current legislation. This could be done by allowing victims of text messaging related accidents to claim punitive damages. This would in turn cause liability insurance companies to increase the insurance premiums of offending drivers and eventually make it difficult for repeat offenders to afford to drive at all.
Have you or someone you know been injured in a car crash by a driver suspected of texting? Do you think our current legislation in North Carolina is sufficient to control the problem of drivers distracted by cell phones? Do you believe there is a problem at all? Do you text while driving and how frequently? Do you have ideas or suggestions that you would like to see made law to address the growing problem of distracted driving? I would love to hear your thoughts and opinions in my blog