Republished with Permission © 2011 Nolo.
You may be liable for a car accident if you were using a cell phone while driving. [If you follow my Portland personal injury blog, you know that the issue of distracted driving is one that is near and dear to me. In today's gadget culture, distracted driving is almost as dangerous as drunk driving. Oregon is no exception. I encourage all my Oregon personal injury clients and potential clients to read this article carefully.]
An increasing number of states and municipalities prohibit the use of cell phones while driving, exposing drivers to penalties such as fines. [Oregon passed its 'hands-free law' last year. However, studies continuously confirm that drivers are still driving and talking, driving and texting and driving and emailing. A recent Oregon study also showed that driving and texting is actually more dangerous in many cases than drinking and driving. This is because of the long periods of time the driver goes without their eyes on the road.] But did you know that in addition to breaking the law, using a cell phone while driving may also expose you to a lawsuit if you are involved in a car accident? Here's an update on some of the latest legal developments regarding cell phone use and car accidents.
Drivers Using Cell Phones May Be Responsible for Car Accidents
When one driver sues another for damage resulting from a car accident, the person bringing the lawsuit (the plaintiff ) generally has to prove that the other driver (the defendant ) caused the accident through his or her careless driving. [In other words, the car accident victim must show that the driver who caused the accident was not behaving reasonably behind the wheel.]
In some recent cases, plaintiffs have argued (and some courts have agreed) that a driver was legally at fault for the accident ("negligent," in legalese) because the driver used a cell phone immediately before or during the collision. [An Oregon court of jury hearing an auto accident case would likely have no problem finding someone liable for texting and driving and causing an accident, for example. With the hands-free law in effect, the best Portland auto accident lawyers are now arguing for negligence per se. This a particular type of case whereby the court holds that the driver who caused the wreck was automatically behaving unreasonably if he or she was breaking the law at the time of the accident.]
In other cases, injured plaintiffs have also been found to have contributed to the accident because they were using a cell phone while driving. [This is the flip side of the same coin. While the hands-free law is a valuable tool for a Portland auto accident attorney, it can cause serious problems where their own clients were the ones breaking the law.]
Examples of careless driving caused by cell phone use include:
•· driving with only one hand on the steering wheel
•· taking eyes off the road to reach for a cell phone or dial a number
•· failing to keep a proper lookout and to pay attention to surrounding dangers because of distractions caused by the cell phone (this includes being distracted by a passenger's cell phone use), and
•· being distracted by a conversation on a cell phone (according to some studies, being involved in any kind of conversation -- particularly an emotionally charged one -- is enough to distract a driver and cause him or her to drive carelessly).
[It is important to note that just because you are talking on the phone with a headset, and are therefore technically complying with the hands-free statute, it doesn't mean you cannot be held liable for a crash. Sometimes taking your eyes off the road just for a second or two to dial a number can be enough to cause an auto accident.]
Employees Doing Business on Cell Phones
An employer might be legally responsible for a car accident caused by an employee if the employee was on a work-related call at the time of the accident. [In Oregon, the call itself need not be work related as long as the driver is on the road for an employment related purpose, like a delivery, an errand or driving to a meeting, for example.] In such an accident, the injured person is more likely to sue the employer, rather than the employee-driver, because the employer typically has more money -- "deeper pockets," as lawyers say -- to pay a settlement or lawsuit judgment. This is why growing numbers of employers prohibit employees from making or taking work-related calls while driving.
Are Parents Responsible for Kids' Cell Phone Use?
In a recent case, plaintiffs argued that parents should be held legally responsible for car accidents caused by their kids' cell phone use. In this case, the parents provided the minor child with the cell phone, and the child was using a cell phone while driving. The law is still undecided on this issue, but parents should think twice before encouraging their kids to make calls while driving. [Given the proliferation of cell phone use among teenagers and young adults, this is an issue of particular concern to Oregon parents.]
And keep in mind that some states have special cell phone laws applying to teens or novice drivers. In these states, teens may be prohibited from using cell phones while driving or may have more stringent restrictions than do adults.
Insurance
Insurance companies are paying close attention to the link between cell phone use and car accidents and many auto insurance websites warn of the dangers of distracted driving. If you are at fault for a car accident caused by cell phone use, or are ticketed for talking while driving, you're likely to see your insurance premium rise. The best way to avoid a higher premium is to avoid an accident -- and potential driver distractions -- altogether.
For a detailed guide on how to handle your own car accident or other personal injury claim, get How to Win Your Personal Injury Claim, by attorney Joseph L. Matthews (Nolo).