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What You Need to Know If You’ve Been Hit by a Distracted Driver
Though driving a motor vehicle always comes with some level of risk, distracted driving creates a far greater safety concern. When a driver is not paying attention to the busy New York roads, they are putting their life and the lives of other drivers at risk. In 2016, accidents involving distracted driving caused 3,450 deaths, making it a highly lethal but preventable safety hazard. If you’ve been involved in a collision and believe distracted driving was at play, [insert marketing/tagline here].
What is distracted driving?
Distracted driving can include a wide variety of activities. The National Highway Traffic Safety Administration (NHTSA) defines distracted driving as “any activity that diverts attention from driving, including talking or texting on your phone, eating and drinking, talking to people in your vehicle, fiddling with the stereo, entertainment or navigation system…”
The most notorious form of distracted driving is texting while driving. Cell phone use of any kind while driving (including talking on the phone, texting, playing games, taking pictures, or browsing the Internet) is illegal in the state of New York and can result in hefty fines and points on your driving record. In addition to the criminal penalties involved, distracted driving can also play an important role in the litigation process.
Distracted Driving in Personal Injury Cases
General tips after a car accident
After a motor vehicle collision, first and foremost, seek medical attention if necessary. If the accident requires you to receive medical treatment, do so immediately. Your health and safety should be your primary concern.
However, it’s also important to identify as much information as possible about the other driver involved, including their name, contact information, whether they have car insurance, and what caused the accident. If there were witnesses to the accident, collect their contact information as well. If you believe distracted driving contributed to the accident, see if any witnesses noticed the other driver’s behavior at the time of the accident. It may also benefit you to hire an experienced lawyer at this stage to help guide you through what to do next.
Dealing with insurance
After the other driver and any relevant insurance policies are identified, you will want to begin filing an insurance claim. Nobody likes distracted driving, but least of all insurance companies. Though most insurance companies want to settle the claims as quickly as possible, keep in mind that paying out claims for distracted drivers costs insurers a lot of money. Therefore, it’s in the insurer’s interest to deny that their insured was using their cell phone, which is why it’s very important to gather as much evidence at the scene of the accident as possible.
If the parties can’t reach a settlement, it is possible that the case will need to move into litigation. If you hadn’t hired a lawyer yet, now would be the time.
Typically, a car accident lawsuit follows the legal theory of negligence, which means you are suing somebody because:
- The defendant owed a legal duty to you, the plaintiff
- The defendant breached that duty
- The plaintiff suffered an injury, and
- The defendant’s breach caused that duty
In other words, your lawsuit will need to prove that the other driver was not exercising reasonable caution, and that caused the crash. Typically, proving that you suffered an injury from the crash is not difficult – you can prove this through medical records or proof of property damage, such as the cost to repair your car. On the other hand, proving that the other driver was behaving dangerously can be difficult.
Distracted driving as a breach of reasonable care
When a driver is participating in conduct that violates a law, such as texting and driving, that tells a judge or a jury that they were not behaving in a reasonably cautious way. When you can prove that the other driver was using their cell phone while driving, and that this caused them to look away from the road, this is a clear-cut way to show that the other driver was acting negligently and was therefore at fault for your injuries.
Special Issues in Discovery
The police report
The crash report will be an important record in litigation. New York DMV’s accident report should provide the responding officer’s account of the crash. Interestingly, the report contains a field for “Apparent Contributing Factors” which includes options for the offer to select human error involved in the crash. A few of the notable factors that may support your claim of distracted driving include:
- Cell Phone (hand-held)
- Cell Phone (hands-free)
- Other Electronic Device
- Using On Board Navigation Device
- Listening/Using Headphones
If the police found evidence of distracted driving at the scene, this may be critical to proving the other driver was at fault.
Discovering phone records when cell phone use is at issue
Though it may seem impossible to definitively prove that a driver was using their cell phone at the time of the accident, there are new and sometimes surprising ways to find out.
Parties to litigation are entitled to discovery, which means obtaining documents and evidence from one another or from third parties. In a motor vehicle collision case, this may include asking for copies of insurance policies, affidavits from witnesses, or street camera footage. But what about cell phone records?
Cell phone records are often a touchy subject in litigation because people feel some sense of privacy in their cell phone use. However, when those records are “material and necessary” to resolving a case, a court may force a defendant to turn them over. New York courts have held that when texting and driving is at issue, cell phone records can be discoverable because they are relevant to showing that the driver was not driving safely.
Expert Witnesses and Data Extraction
The technology involved in extracting data from cell phones is expanding. Experts in data extraction can pull a vast amount of information from cell phones, including texts and information from other messaging apps, call history, web history, social media use, and other app use. Using technology like Cellebrite, an experienced expert can analyze the cell phone’s metadata to help you prove whether the other driver was in fact using their cell phone at the time of the crash.
While distracted driving is unfortunately increasingly prevalent, there are also emerging tools and methodologies for litigating and penalizing those who are guilty of it. Having an experienced personal injury attorney by your side can help you navigate the complexities involved with negotiating with insurance companies, or, if necessary, taking your case to court.
 E.g., Morano v. Slattery Skanska, Inc., 2007 NY Slip Op 27491, 18 Misc. 3d 464, 474 N.Y.S.2d 881 (Sup. Ct.).