Texas Texting Ban May Help Victims, But Not the Way You Think It Will

Cory CarlsonNovember 03, 2023 8 minutes

In September 2017, the Lone Star State implemented a new law that bans texting while driving. The number of people I've seen glancing down at their laps on the tollway suggests these new rules haven't soaked in just yet. Even if the fines don't persuade drivers to put down their phones, though, our lawyers argue that having this law on the books may make it easier for accident victims to sue texters.

First, a little history. After three prior failed attempts to pass cell phone restrictions through the legislature, House Bill 62 became law and made Texas the 47th state in the U.S. to prohibit texting while driving. As of September 1st, the offense is punishable by a $25-99 fine for first-time offenders and $100-200 for repeat offenders. If texting and driving causes an accident that results in death or serious bodily harm to another person, an offender could be charged with a Class A misdemeanor and punished by a fine not to exceed $4,000 and/or jail time not to exceed a year. These punishments still pale in comparison to the 2-20 years a person can get in jail if they kill someone because they decided to drink and drive, but it's a step in the right direction.

So far, every discussion of HB 62 that I've come across has focused on the criminal sanctions for texting and driving. What I haven't found is any discussion of whether this law will help victims of texting and driving recover compensation for their injuries, so let's delve into that.

What Does This Have to Do With Personal Injury Law?

You may be wondering how a law concerning moving violations (a criminal matter, essentially) has any impact on personal injury law. The answer has is that causing an injury while doing something criminally illegal can create a special "argumentative shortcut" for personal injury victims. To better appreciate said shortcut, we must first look at how injury cases are presented to a jury normally.

As the owner of our firm, Michael Grossman, has explained elsewhere on this site, when a defendant (the bad guy) hurts someone through simple carelessness, the plaintiff (the injured person) usually elects to sue them under a theory of negligence. When alleging negligence against someone, there are essentially four things that a plaintiff must prove:

  • The defendant owed the plaintiff a duty not to hurt them.
  • The defendant committed an act which breached that duty.
  • The plaintiff incurred losses.
  • The breach of the duty was the main cause of the plaintiff's injuries.

The above negligence cause of action is used as the basis for most personal injury cases. Since it's so general in nature, lawyers can usually apply most accident scenarios to it. For instance, one of our firm's attorneys recently sued a dog owner in relation to a mauling which badly injured a client. In that case, the lawyer argued that the owner of the dog owed a legal duty to the plaintiff to refrain from harming him, the defendant then allowed his known dangerous dog off the leash, and the dog subsequently attacked the plaintiff, thereby breaching the aforementioned duty, the breach caused the plaintiff to suffer injuries, and so on.

Now, would it have been easier if the lawyer could have just gone before a jury and said, "Folks, don't you think the bad guy should be financially liable since his dog attacked our client?" Of course. But that's not how courts function. Instead, lawyers must frame the facts and circumstances of their clients cases in the language of the elements of a negligence case.

For a fairly absurd example of how this can play out, consider the headline-grabbing case of a man who sued Applebee's over a fajita-related injury. In that case, the man leaned over his plate of piping hot fajitas to pray for his meal when hot juices or oil from the meat erupted and caused the man to suffer serious burns to his eye. By the time the case was on the radar of the national news media, it had been plead under a premises liability theory (a specific kind of negligence allegation). As such, the injured man's arguments amounted to: There was a dangerous condition on the premises that the defendants failed to warn me about and I was harmed by this dangerous condition. Media pundits and their readers thought to themselves, "What an idiot. Who thinks that fajitas constitute a dangerous condition on a premises?"

What the news and the news-consuming public failed to appreciate is that the injured man probably didn't want to present his case to the jury as a premises liability case; he probably had no choice. In all likelihood, there was a court decision that forced him to frame his case in those terms.

Naturally, this can make personal injury cases a little challenging. As our firm's founder, Michael Grossman, is fond of saying, "When you convert a common-sense scenario into legalese, you run the risk of confusing the jury."

Michael makes a good point. If you or I ask a man on the street, "Morally speaking, should someone be liable if they were putting on their makeup while driving and caused an accident?" they'd no doubt say, "Of course!" It jibes with one's internal compass regarding right and wrong. But if a lawyer takes that same black-and-white issue and asks a man on the street, "Does the act of putting on makeup while driving constitute the breach of a legal duty that was owed to the plaintiff?" it's hard to guess what the man might say.

Even though both questions ask the same thing, one is more complicated, bordering on confusing. Indeed, many cases heard by our state's appellate courts center on how a jury interpreted the instructions given to them when they were tasked with determining whether a defendant's actions made them liable. The jury charge (fill-in-the-blank form the jury uses to apportion fault) for a negligence case might say something along the lines of, "Did defendant Jane Doe owe a legal duty to the plaintiff?" And the jurors may wonder, "How do we decide if there is such a legal duty, exactly? Are we able to invent a duty because we think there should be one? Does there need to be a written law that creates the duty?"

As Michael pointed out, a jury may struggle when forced to think of a straightforward scenario that is framed in legalese. As such, when the court provides a way for a lawyer to frame an accident scenario in less abstract terms, they'd usually prefer to do so.

Enter Our Hero: the Negligence Per Se Cause of Action

When someone causes an injury while doing something that is both careless AND is also in violation of a statute, judges will often allow the matter to be argued under a theory of negligence per se rather than under a theory of ordinary negligence.

Again, borrowing from Mike Grossman's writings on the matter found elsewhere on this site, negligence per se essentially means that some act is negligent as a matter of law. In other words, when someone does a certain forbidden act, they are negligent by default rather than negligent according to the jury's sensibilities. The beauty of the negligence per se argument is that it allows lawyers to (essentially) ask the jury "Did the bad guy do the bad thing?" If the jury says "yes, the bad guy did the bad thing," case closed; the plaintiff wins. Where, in a case where a lawyer has to argue the case in terms of ordinary negligence instead of negligence per se, the lawyer's argument comes across more like, 'Did the bad guy do the thing we accuse him of? Is that thing something that should be forbidden?" The latter approach is far more subject to interpretation by a jury and therefore makes it harder for an injured person to win their case.

Well, if that's the case, then why don't lawyers argue every case in terms of negligence per se instead of as an ordinary negligence case? The short answer is because only certain types of wrongful conduct are allowed to be framed as negligence per se.

When framing an injury or accident in terms of negligence per se, the injured party must show:

  • The defendant broke a written law, and
  • Breaking that law caused the plaintiff's injuries.

As you can see, what has to be proved when alleging negligence per se is far more straightforward than what has to be proved in an ordinary negligence allegation.

To help illustrate the advantage of being able to frame a case in terms of negligence per se:

Imagine that in 2016 Bob was texting while driving and caused an accident that injured Denise. Denise then sued Bob on the grounds that that Bob was negligent. Therefore, she would have to show the jury that Bob owed her a duty not to harm her by texting and driving, that he breached the duty, that his breach of the duty was the proximate cause of her damages, and that she indeed sustained injuries. That's a lot for a jury to consider, which creates opportunities for confusion and for Denise's no-brainer case to be misinterpreted. If, after hearing all the evidence presented, a juror says "There's no written law that says you can't text and drive, so I don't think Bob owed Denise a duty," then Denise just lost her case.

To be clear, there's close to 180 years of Texas case law which suggests that doing anything that reasonable people consider to be dangerous is an unlawful violation of other people's rights, whether or not there's a written law that bans the specific act in question. So, a juror should feel free to interpret Bob's texting and driving as a violation of a duty that Bob owed to Denise. Nevertheless, some jurors simply aren't going to be persuaded by that line of thinking. But now that we have a written statute on the books that essentially says "Thou shalt not text and drive," arguably, attorneys will now be able to skip all the mumbo-jumbo of a typical negligence allegation and instead go with the more common-sense approach of arguing negligence per se.

Let's now imagine that Bob causes the same kind of injurious wreck in late 2017, after the texting and driving ban went into effect. The new victim is Barbara. Barbara's lawyers no longer have to present her case as a more complicated negligence case. Instead, they simply ask the jury, "Did Bob break the Texas law which forbids texting and driving? Did he cause her injuries?" So long as the jury says "yes" to those questions, Barbara wins her case.

As illustrated in the example above, being able to frame an injury scenario in terms of negligence per se rather than in terms of ordinary negligence enables attorneys to keep the phrasing much simpler. Given the number of cases that make their way to the appellate courts simply because juries didn't really understand how to apply the law to a scenario they otherwise understood, many lawyers view the negligence per se option as a way to cut through the confusion.

The Catch: A Judge Has to Give Lawyers Permission to Use This Approach

We just talked about the phenomenon wherein the court asks jurors a series of questions and the answers the jurors give denote the outcome of the case. But what we didn't mention is specifically how attorneys ask juries those questions. The answer is the jury charge.

As a trial progresses, lawyers and witnesses for both sides do a lot of talking. When the attorneys rest their case, the jury deliberates. At the end of their deliberations, the jury is asked to fill out a pseudo-questionnaire called the jury charge. This is where the court ask questions like "Does the evidence show that Bob was doing X?" and so on.

When a new statute is enacted that has some tie-in to a civil suit, the judge presiding over the matter will have to decide whether it is proper to frame the matter in terms of negligence per se rather than as ordinary negligence. The judge examines the statute in question and first makes a determination as to whether the plaintiff is the kind of person the statute sought to protect. Next, he or she will determine whether the statute is one for which a personal injury lawsuit can be brought if the statute is violated. Our firm's attorneys believe that a judge would look at the new anti-texting statute and conclude that someone injured in a car wreck is indeed the type of person the law sought to protect, and that the law is one for which a personal injury lawsuit can be brought when the law is violated.

In other words, the lawyers at our firm believe that a judge will conclude it's proper to frame texting-while-driving cases in terms of negligence per se, which will make it easier for them to help our clients get what's owed to them.