By:  Darren Salute, Esq.

How many of us have picked up our cell phones while driving to quickly check an email, review or send a text message or simply make a phone call.

We’ve all heard the news regarding the new cell phone hands free laws.  California’s Vehicle Code §23123 requires cell phone usage to be hands-free when driving.  This means if a police officer sees you driving with your cell phone in your hand the ticket will set you back $20 for the first offense and $50 for each subsequent offense.  While this may not seem steep to you, RECONSIDER!  The potential cost may be far greater than you expect and potentially “the skies the limit.”

For instance, 21 year old Pollyana Salas-Uruena, was suddenly struck from behind by a charter bus.  At the time, the bus driver was using her cell phone.  The case settled at mediation for $614,000.00.  A 17-year-old college student and pedestrian, suffered a right leg amputation below the knee as a result of an auto pedestrian collision because of the inattentive and distracted driver. The case settled before trial for $8,000,000.  A seventy-seven year old plaintiff was injured when the defendant, cell phone to her face, made a left turn, striking him.  This case settled before trial for $500,000.  Finally, in March of this year, thirteen (13) senior citizens were killed when their church bus was hit head-on by a pick-up truck in Southwestern Texas.  Witnesses to the accident reported the driver was texting seconds before the accident.  Texas does not yet ban texting and driving.

With payouts like these, how long will it be before Plaintiffs also begin to seek punitive (punishment) damages?  Years ago, drunk driving was considered nothing more than a minor indiscretion.  No one thought too much about it.  Today, state legislatures and law enforcement agencies across the country are cracking down hard on intoxicated drivers and allowing for punitive damages.  Moreover, juries are awarding large verdicts.

For nearly 30 years California Courts have recognized impaired driving can sometimes reach the blame level worthy of an award of punitive damages. Juries throughout California are constantly being asked to decide if operating a motor vehicle while intoxicated constitutes an act of “malice” so that an award of punitive damages can be made.  The plaintiff need only show the defendant voluntarily consumed alcoholic beverages, became intoxicated, all the while knowing he or she would also have to drive.  If a jury finds “malice” to be the case, the state legislature and the Courts have opened the doors to punitive damages and punishing the driver. What this means is, if the driver knows he or she is too impaired to drive and does so anyway the jury can punish them or their employer financially.

So, what does this have to do with making a phone call or texting in the car while driving? Recent changes to the definition of “malice” may have a significant impact when the car accident is caused by a distracted cell phone user rather than an impaired driver.  The phrase “despicable conduct” as it relates to “malice,” simply asks the jury to decide if the defendant’s actions while driving were willful and in conscious disregard of the rights or safety of others.” In DUI cases, this means impaired driving.  Impaired driving can also be used to describe texting and cell phone usage while driving.

The Legislature has yet to define what acts constitute “despicable conduct” and “conscious disregard.”  In California, Courts have held “the adjective ‘despicable’ connotes conduct that is . . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  How soon will it be before jurors decide that drivers texting or using their cell phones while driving is so vile, base, contemptible, miserable, wretched or loathsome?  However, a quick and simple solution to this problem has been discovered and it is within your power to carry out. DON’T TEXT AND DRIVE.