"Driving While Distracted". . .the new DUI

We have all seen or heard of these accounts in the headline news.  We have read and heard the same dreadful, gut wrenching, horrific stories.  A teenager passed away in a vehicular accident while driving to school when another vehicle crossed the center line and hit her head on.  A father on his way home from the airport from a long business trip, killed at an intersection when the other driver ran through a red light.  What was the common cause of so many of these auto accidents? How did they happen? "Driving while distracted" due to the use of a cell phone or other electronic device is becoming a common cause of accidents in the State of Florida.

The question I have asked myself more and more lately, in my legal practice, is as follows, "Is cell phone use while driving a voluntary act, that is as impairing as driving while under the influence of alcohol?" Both voluntary acts necessarily endanger drivers, passengers, and pedestrians. Both voluntary acts result in injuries and damages that have devastating effects upon those that are injured as well as their loved ones. The choice to drive while impaired, whether by alcohol or alternatively because of the voluntary choice to divert one’s attention from the task of driving by using a cell phone, is a decision to put others' lives in danger. This menacing behavior is a public wrong that has caused and will continue to cause egregious personal injuries if not appropriately addressed.

Researchers from the University of Utah conducted a controlled study that directly compared the performance of drivers who were conversing on either a handheld or hands-free cell phone with the performance of drivers with blood alcohol concentrations at 0.08% weight/volume (wt./vol.). Strayer, D.L., Drews, F.A., and Crouch, D.L. A Comparison of the Cell Phone Driver and the Drunk Driver, Human Factors: The Journal of the Human Factors and Ergonomics Society, 2006 (Summer), 381-391; University of Utah. This important research helped confirm what is becoming evident by the alarming rise in catastrophic accidents due to "attention blindness" caused by cell phones and other electronic devices. This study concluded:

• Drivers using a cell phone exhibited a delay in their response to events in the driving scenario and were more likely to be involved in a traffic accident.
• With respect to safety, the data suggests that the impairments associated with cell phone drivers may be as great as those commonly observed with intoxicated drivers.
• Cell phone drivers had slower reactions and were involved in more accidents.

These impairments divert attention from the processing of information necessary for the safe operation of a motor vehicle. Human Factors: The Journal of the Human Factors and Ergonomics Society, 2006 (Summer), 388; University of Utah citing (Strayer et. Al., 2003; Strayer & Johnson, 2001).

Drivers are significantly more likely to have an accident when using cell phones. In particular, a University of Florida study reported that “people using mobile phones while driving were anywhere from thirty four (34) percent to three-hundred (300) percent more likely to have an accident.” When thinking of distraction, one may be tempted to assume that it occurs only at the moment of the distracting event. However, according to the New England Journal of Medicine, collision rates are four times higher even when a call ends fifteen minutes before an accident. The risk of an accident only dissipates fifteen minutes after a cell phone call is made! According to another study, the risk of any accident caused by cell phone use is equivalent to the risk caused by legal intoxication. “Scientific research has found that a driver's reaction time is slowed by an average of thirty (30) percent while talking on a cell phone, similar to that of a drunk driver.” Liability for Accidents from Use and Abuse of Cell Phones: When are Employers and Cell Phone Manufactures Liable?; 79 N.D. L. Rev. 299 (2003) (references omitted).

The NHTSA (National Highway Travel Safety Agency) and the Virginia Tech Transportation Institute conducted a study in 2006, which revealed that 80% of crashes and 65% of near-crashes resulted from driver inattention. Matthew Sundeen, Cell Phones and Highway Safety, 2006 Legislative Update, March 2006 at https://www.ncsl.org/documents/transportation/2006cellphone.pdf. The same study found that, when evaluating the actual impact of using a cell phone while driving, cell phone use decreases a driver's reaction time. The study showed that 18% of drivers were slower in hitting their brakes, had a 12% greater following distance to compensate for not paying attention to road conditions, and took 17% longer to regain speed that they lost upon braking compared to drivers not using cell phones. Drivers using cell phones were twice as likely to be involved in rear-end collisions than persons not using cell phones. Matthew Sundeen, Cell Phones and Highway Safety, 2006 Legislative Update, March 2006 at https://www.ncsl.org/documents/ transportation/2006cellphone.pdf.

The New England Journal of Medicine found that the chance of getting into a motor vehicle accident quadrupled when talking on a cell phone. Cell Phones and Driving, Insurance Information Institute (February 2003). In their study they found that talking on a cell phone impairs the driver's ability to focus on the road in the same manner as driving drunk. Kalin, The 411 on Cellular Phone Use: An Analysis of the Legislative Attempts to Regulate Cellular Phone Use by Drivers, 39 Suffolk U.L. Rev. 233, 238 (2005).

Punitive damages serve an important purpose of deterring certain types of especially wrong or dangerous conduct and are “favored because it has been determined to be the most satisfactory way to correct evil-doing in areas not covered by the criminal law.” Campbell v. Government Employees Ins. Co., 306 So. 2d 525, 531 (Fla. 1974).

Punitive damages have been recognized in Florida jurisprudence since at least 1882, where the Florida Supreme Court recognized that “[e]xemplary, vindictive or punitive damage awards blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but a punishment to the offender and an example to the community.” Smith v. Bagwell, 19 Fla. 117, 121 (1882). A hundred years later, the court reiterated that punitive damages are designed to punish a defendant for wrongdoing and to deter similar conduct in the future. Chrysler Corp. v. Wolmer, 499 So.2d 823, 825 (Fla. 1986). Punitive damages are appropriate where the egregious actions of a wrongdoer qualifies as a public wrong, although not necessarily a criminal act. Id

Although punitive damages are not automatically justified in every driving while under the influence of alcohol case, it is well-settled under Florida law that punitive damages can be appropriate where negligence and intoxication of the defendant occur in tandem. Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976) (plainly stating “We affirmatively hold that the voluntary act of driving ‘while intoxicated’ evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages.”). This principle was the result of legislative public policy that held drunk drivers to be a menace to public safety and was an effort to discourage such menacing behavior via punishment. Id.

The science is overwhelmingly supportive of the notion that cell -phone use, whether via talking on the phone or texting, is a distraction to drivers that limits their ability to focus on the road. The effect of this cell-phone use has been well-documented and is continuing to be researched. There are academic studies as far back as 1997 that show that the risk of being in an accident while on the cell phone is similar to the risk of being in an accident while intoxicated.[1]

This is especially problematic considering the nearly ubiquitous nature of cell phones in the possession of drivers on the roads. In fact, it has been estimated that over 100 million cellular phone subscribers use their phone while driving and that “cell-phone drivers may actually exhibit greater impairments than legally intoxicated drivers.”[2] The relative likelihood for being involved in an accident is almost the same between cell-phone drivers and intoxicated drivers. Cell-phone drivers have been found to be four times as likely to be involved in a vehicle accident as those drivers not using their cell phones; this increase in risk is similar to the risk increase in drivers while intoxicated.[3]

The likelihood for a driving accident is even worse for drivers who are texting. Studies suggest that the likelihood for a driving accident to occur for a texting driver is increased more than twenty fold with drivers taking their eyes off the road for more than 4.6 seconds over a six-second interval.[4] Similar, but less formal, studies by Car and Driver Magazine suggest that reading and/or writing texts decrease reactions time by at least as much as driving while intoxicated.[5]

This increased risk is likely the reason that most states, all but five, ban texting while driving and treat it as a primary offense.[6] Even though Florida is in the minority with regard to texting while driving as a primary offense, the legislature has decided that the problem is sufficiently pressing to warrant formally addressing the public safety concerns and risks inherent to driving while texting via statute. A myriad of studies support the proposition that cell phone use while driving increases risks for accidents and the media is replete with public warnings of that danger. There is no longer any reasonable basis to believe that cell phone use by driving has no effect on public safety, just as there is no reasonable basis to believe that driving while intoxicated has no effect on public safety, in general. The grave public policy concerns, as recognized by the Florida legislature, suggest that driving while using a cell phone should be treated like driving while intoxicated with regard to punitive damages.

The use of a cell phone while driving is an affirmative choice made by a driver. It is an intentional and conscious choice to increase the risk of harm to the public. That choice should be considered an exemplar of the “intentional misconduct” outlined in §768.72 (2)(a). And, if not intentional misconduct, then the actions at least constitute “a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct” to support a claim for punitive damages under §768.72(2)(b).

In light of reason and just plain old common sense, coupled with the overwhelming data showing the increased risk of causing an auto accident due to cell phone use while driving, should allow for the recovery of punitive damages in civil negligence car accident cases where a friend, relative, child or loved one is seriously injured or even worse, killed, by a few seconds of distraction blindness. Its a voluntary choice to divert one’s attention from the task of driving by using a cell phone.  It is a decision to put others' lives in danger which is just as dangerous as the voluntary act of driving while intoxicated.

[1] Donald A. Redelmeier, M.D., and Robert J. Tibshirani, Ph.D., Association Between Cellular-Telephone Calls and Motor Vehicle Collisions, 336 New Egl. J. Med. 453, 465 (1997).

[2] David L. Strayer et. al., Fatal Distraction? A Comparison of the Cell Phone Driver and the Drunk Driver, U. of Utah Dept. of Psychol. (2003).

[3] Donald A. Redelmeier, M.D., and Robert J. Tibshirani, Ph.D., Association Between Cellular-Telephone Calls and Motor Vehicle Collisions, 336 New Egl. J. Med. 453, 456 (1997); see also David L. Strayer et. al., A Comparison of the Cell Phone Driver and the Drunk Driver, 48 J. HUM. FACTORS & ERGONOMICS SOC’Y. 381, 381-391 (2006) (showing that the use of cell phone delays reaction time due to driver inattention).

[4] Sherri Box, New data from Virginia Tech Transportation Institute provides insight into cell phone use and driving distraction, Virginia Tech News, July 29, 2009, https://www.vtnews.vt.edu/articles/2009/07/2009-571.html.

[5] Michael Austin, Texting While Driving: How Dangerous is it?, Car and Driver, June 2009, https://www.caranddriver.com/features/texting-while-driving-how-dangerous-is-it.

[6] Distracted Driving, Governors Highway Safety Association, https://www.ghsa.org/state-laws/issues/Distracted-Driving.