Most Georgia drivers agree that it is dangerous to use cellphones and other devices while they drive. Yet motorists in the Peachtree State spend more time on their cellphones while they are behind the wheel than almost any other drivers in the South. That incongruity is at the heart of device distraction claims. People know what they are doing is wrong, but they refuse to change.
As a result, a Marietta personal injury attorney is usually able to obtain substantial compensation in device distraction cases. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
What is “Distracted Driving?”
This umbrella term covers a wide range of behaviors. Hand-held cellphones get most of the attention because these gadgets combine all three forms of distracted driving, which are:
- Manual (taking a hand off the wheel),
- Visual (taking one’s eyes off the road), and
- Cognitive (thinking about something other than driving).
This list includes a wide range of behaviors. In fact, device distraction is not the leading cause of distracted driving. That honor, or dishonor, goes to a wandering mind. The other non-device behaviors in the top five are sightseeing, talking with passengers, and eating or drinking while driving.
Most Cobb County jurors consider non-device distraction to be careless, but not negligent. What’s the difference? Carelessness is usually a momentary lapse. So, if a driver causes a crash while gazing out the window, most jurors consider it a “wrong place at the wrong time” affair. Using a device, however, is different. As mentioned, many jurors think that people who use devices while driving consciously disregard a known risk. So, they often award maximum compensation.
Device Distraction Liability
Victim/plaintiffs must establish negligence by a preponderance of the evidence (more likely than not). Some evidence in device distraction claims includes:
- Cellphone call logs,
- Text message history,
- Statements made to first responders,
- Erratic driving prior to the crash, and
- Web browsing history.
In some situations, evidence is not necessary. Georgia has a rather broad hands-free law. Most drivers cannot touch their devices while they are driving. Most other states at least allow swiping or button-pushing. If first responders cite the tortfeasor (negligent driver) for violating the hands-free law, the tortfeasor might be legally responsible for damages as a matter of law.
But the hands-free law has a number of exceptions. Additionally, it does not forbid hands-free cellphones and other devices, even though these gadgets are more dangerous than the hand-held variety.
Hands-free phones are visually and cognitively distracting. Additionally, there is a texting latency period. Drivers do not re-focus on driving for about twenty-seven seconds. A lot can happen in that narrow window of time. Finally, hands-free devices often give drivers a false sense of security. So, they take more chances behind the wheel than they should.
In these situations, evidence is critical, and not just because victim/plaintiffs have the burden of proof. Frequently, there is a direct relationship between the amount of evidence the victim/plaintiff presents and the amount of damages jurors award. So, diligent evidence collection could be the difference between fair compensation and settling for less.
Distracted Driving Defenses
Using evidence and the appropriate legal theory to build a case is not enough. The best Marietta personal injury attorneys must also be ready to respond to some common insurance company defenses in car crash cases.
Contributory negligence is one of the most common defenses. This legal loophole shifts blame for the accident from the tortfeasor to the victim. Assume David was talking on a cellphone when Ben came through an intersection on an orange light (a yellow light that turned red while he was still in the intersection). David’s insurance company would probably argue that Ben’s failure to stop caused the crash, as opposed to David’s device distraction.
In these cases, the jury must apportion fault on a percentage basis. Georgia is a modified comparative fault state with a 50 percent bar. So, even if Ben was 50 percent responsible for the crash, David would still be liable for a proportionate share of damages.
The insurance company has the burden of proof and the burden of persuasion in this area. Insurance company lawyers must convince the judge that Ben substantially caused the crash. Then, they must convince jurors of the same thing. That’s a tall order.
Other insurance company defenses, which do not come up very often in distracted driving claims, include sudden emergency and its legal cousin, the last clear chance rule. These doctrines excuse negligent behavior in extreme situations, like a driver erratically crossing the center line or a tire blowout that causes a driver to lose control of a car.
Resolving Distracted Driving Claims
Most distracted driving claims settle out of court. Many of them settle after discovery and during mediation.
During discovery, both parties exchange information about their claims and defenses. Once all the cards are on the table, it’s easier for both sides to evaluate the strengths and weaknesses of their respective cases.
Mediation is a common form of alternative dispute resolution in Cobb County. A third-party mediator, who is usually an unaffiliated Marietta personal injury attorney, works with both sides and tries to facilitate a settlement. If both sides negotiate in good faith, mediation is usually successful.
A Marietta personal injury attorney must not settle the case too early. If that happens, the settlement amount might not account for all damages, such as future medical expenses. These costs would probably come out of the victim’s pocket, because it’s almost impossible to reopen closed cases.
Contact an Assertive Lawyer
Device distraction claims are rather complex. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We do not charge upfront legal fees in injury cases.