Today marks the third day in a row I narrowly avoided serious injury on my way to work.
Those familiar with Dallas traffic won't even bat an eye when I say that, but I want to add that in each instance I was cut narrowly off--stomping my brake to avoid collision--and in two of those three incidents, I saw the glow of a cell phone screen through the rear window of the offending car.
While citizens are well aware of how dangerous it can be to take their eyes off the road while piloting a two-ton projectile made of explosion-powered steel and fiberglass, it's painfully clear that drivers still succumb to the urge to check and engage with their smartphones as they navigate traffic. It's not the only kind of distracted driving, but it continues to gain prevalence. Responding to these "pocket Pavlovs" causes a significant number of accidents every year, and that number keeps growing.
In 2017, Texas legislators plan to try (again) to put something on the books that bans all instances of texting and driving across the Lone Star State. This initiative has been attempted several times now, and has been overturned every time by opponents who consider it an infringement on citizens' First Amendment right to free speech.
The Goal: Outlaw A Dangerous Driving Behavior.
Those behind the ban want to push for a bill outlawing all forms of texting and driving in 2017, during the state's 85th legislative session. As they have in the past, though, some Republicans are already pushing back against the proposed law. They have previously argued that banning this practice on a statewide level will have a negligible effect on the number of traffic injuries. Furthermore, it is the Republican stance that imposing these controls will infringe on the rights conferred to adult Texan drivers.
This topic has been broached several times; in 2011, a ban was actually passed, but was vetoed by Rick Perry, the governor at the time. It arose again in 2013 at the 83rd legislative session--the proposal was passed, but the Senate Transportation Committee refused to allow the vote, which sent it spiraling back into oblivion. Once more in 2015, texting and driving legislation was passed by the Texas House, but was a single vote shy of making it to the Senate.
This is not some draconian mandate designed to keep people from typing "LOL" as they please, though. This is meant to address an epidemic problem--traffic fatalities--that smartphone ubiquity has only made worse. It's also an attempt to close up some notable gaps in the Texas Transportation Code, as most instances of distracted driving aren't really addressed.
How Bad is the Problem Addressed by the Bill?
Whether or not the ban is actually passed this time, the statistics about texting and driving are pretty chilling:
- Drivers who are texting are six times more likely to crash than drunk drivers, and twenty-three times more likely to crash than average drivers.
- Sending text-based messages also takes the most "eyes off the road" time of any distracted driving activity, making an auto accident up to 23% more likely.
- Roughly 25 percent--that's 1 in 4--auto accidents in America are now caused by texting and driving.
- The Texas Department of Transportation reported over 100,000 distracted-driving crashes in 2015. That's a healthy portion of the estimated 1,600,000 related wrecks per year in the U.S.
- In 2009, developments in vehicle safety measures coupled with dropping intoxicated-driving rates had actually led to a reduction in estimated traffic fatalities. The first-gen iPhone was released in June of 2007; as smartphone technology progressed and competition increased the gadgets' affordability, their entry into daily consumer living pushed that sinking statistic back upward.
- At the rate things are going, distracted driving is set to overtake drunk driving as the leading cause of traffic injuries within the next 5 to 10 years.
Given these numbers, it's puzzling that anyone is standing against a move to reduce injuries and fatalities. Time and time again, it has stood up and been knocked down. Nevertheless, an ancient proverb says "Fall down seven times, stand up eight." Considering the bill's goal is to save lives, it is to be hoped that its proponents will keep trying until it passes. In the meantime, TxDOT and various awareness campaigns are doing what they can to alert drivers of the habit's dangers.
In many ways legislators are simply trying to codify what appears to be the common public opinion about this problem. Surveyed Texan drivers overwhelmingly supported the ban, with 94% of respondents saying they would be glad to see the end of texting and driving specifically, and 74% wanting to see an outright ban on hand-held cell phone use while driving.
It's worth noting that while a prohibition hasn't taken effect on the statewide level yet, it's not all texting anarchy out there. Over 60 Texan cities have local ordinances banning texting and driving within their city limits. The state has also outlawed texting and driving by all drivers under 18 years of age, commercial vehicle drivers, and anyone driving in a school zone. The Texas Transportation Code was pretty thorough in defining that last, as the law takes great care to protect the welfare of children. Section 525.425 of the Code says:
"...an operator may not use a wireless communication device while operating a motor vehicle within a school zone, unless:
(1) the vehicle is stopped; or
(2) the wireless communication device is used with a hands-free device."
Pretty straightforward, right? Keep your hands on the wheel and your eyes on the road. Vital precautions in an active school zone, but it also seems like good guidelines for all driving.
Applications in Personal Injury Law
Let's not kid ourselves here--even if the legislation passes, transgressors aren't exactly going to be walking the plank. Based on punishment schemes in more restrictive states like New Jersey, a first-time offender might at worst face a fine of up to 400 dollars. No state with punitive measures for distracted drivers has any jail time included for a charged offender. Conversely, a drunk driver in Texas--whose reaction time is compromised by only a third of a texting driver's--could face three to 180 days of jail time, a fine up to $2,000, and up to one year's suspension of his license. I don't mean to suggest that culturally we're ready to treat texting drivers with the same severity as drunk drivers, but the numbers behind each type of behavior suggest they are more similar than we might think in terms of recklessness.
While offenders' wrists might get sore from the slaps they receive through criminal prosecution, people who are hit by texting motorists fortunately have considerable recourse through civil litigation. A good attorney will help an injured party seek damages against the distracted driver who caused the accident.
One of the principle forms of personal injury litigation revolves around the idea of negligence. Under this theory of liability law, an attorney needs to prove that a defendant harmed the plaintiff not through deliberate action, but through a failure to exercise a reasonable amount of caution in a given situation.
It is not difficult to point to an instance of negligence here; whether statutory law points to texting and driving as specifically illegal yet, it can hopefully be agreed that it is dangerous and reckless. A successful claim would break down pretty much as follows:
- The attorney will argue that the defendant, like all drivers, owes a duty to his/her fellow motorists to exercise a reasonable standard of care while on the road. This one's fairly clear-cut, but it's still an important element of the equation. Once it is agreed upon that a driver is obligated to practice safe conduct behind the wheel, this duty can serve as the cornerstone from which to demonstrate the other elements.
- Once the defendant's duty to other drivers has been established, the attorney can show that this responsibility was breached. Given that one or more people suffered the consequences of the defendant's failure to pay heed to his or her surroundings, breach is also pretty straightforward--it is evidenced by the plaintiff's injuries that the defendant failed to exercise proper caution and driving technique.
- The hardest part of most of these proceedings is proving the alleged action is truly responsible for the accident. This is called causation, and a lot of the leg-work in a negligence case comes from this phase.
The trickiest part of this element would likely be showing that distracted driving truly was the culprit, or the proximal cause. Clever defense counsel might seek to undermine this allegation with suggestions of mechanical failure in the car, or the involvement of a different external influence that cause the unsafe driving (swerving to avoid a third party, for instance). Plaintiff's counsel would likely need either the phone itself or subpoena'd records to examine the message history on the phone. The idea would be to determine when the most recent message was sent from the phone and correlate that to the time of the crash.
Enforcement for this type of infraction is still very much in its infancy. The state of Georgia, which has tried to enforce restrictions on texting and driving since July, is a typical example of this difficulty. To pull a motorist over for a suspected infraction, an officer needs probable cause, and as things stand, suspicion of texting and driving has to be confirmed by an officer's direct sighting of a cell phone in a driver's hand. A slow pace or a driver looking down are not enough to constitute an infraction without sighted confirmation of a driver texting behind the wheel. - The final crucial element is proving that a plaintiff has demonstrable damages. This is usually evidenced through records of medical treatment, since injuries from auto wrecks can run the gamut of gravity, from mental anguish (which, despite its bad rap, is a very real and very serious kind of injury) to severe physical trauma that requires surgery.
The Conflict Between Personal Freedom and Public Interest
It appears that the bill's opponents have been and still are concerned with the perceived limitations imposed by the ban--particularly those that would prevent the exercise of this particular form of "freedom." The motif seems to be that mandatory safety measures, when not voluntarily chosen by an individual, are somehow encroachments on his or her personal liberties (Coincidentally, these arguments ring similar to those used in days past when protesting the inclusion of airbags and seat belts in cars). They contend that free speech isn't limited to what comes from our mouths, but also what we can tap out with our thumbs--and when we do that tapping. While I agree that it's important to protect one's right to free speech from tyrants and despots, I sincerely doubt the Continental Congress set out to guarantee our inalienable right to send emojis to our friends at inopportune and dangerous times.
Let's be truthful: texting and driving is dangerous and it seldom serves a helpful purpose. We at the firm are not crazy about nanny-state government interference, but that is not what I'm seeing in this instance. Strident demands to "per-tect muh freedoms" do not hold much water here, considering that the exercise of one's liberty to drive unsafely will directly affect the well-being of other drivers around said patriot. "The right to swing your fist ends at the tip of my nose," as the saying goes.
Taking that a step further, individualist arguments are specious at best here because driving is a privilege, not a guaranteed right. Because that is a functional and very important distinction, it grants the government far more latitude in regulating what we can and cannot do behind the wheel. There isn't a significant platform for personal freedom on the road, because most municipal and state roadways are funded by the public. They don't belong to anyone specific, so no one can claim specific liberties on them.
Consider other forms of road transgression--is it upsetting that drivers are prevented from traveling at 150 miles per hour? That they can't legally get as drunk as they want and swerve between lanes on the highway? That we aren't allowed simply to ram into other vehicles on the road when we want to get in their lane?
No. We don't do a double-take at any of those regulations, or gripe about their unfairness, because we respect them as measures to protect our welfare.
Texans drive a lot. We're a big state, and everything is spread out. You're likely to drive in the course of your daily routine, and the fewer ways that can go catastrophically wrong, the better. At Grossman Law, we've witnessed the heartbreak caused by distracted driving many times over the years. As a tragic example, the firm is working on the case of a couple who came down from Canada in an RV on a road trip. A young motorist who was texting while driving slammed into the side of the vehicle at an intersection and ignited its on-board propane tanks. No one survived the crash.
It's a scenario that has played out with similar details a thousand times, and all of them could have been avoided with a silent, stowed phone. So yes, I'm definitely rooting for the passage of the bill, and if its proposed measures don't significantly dent the crash statistics, civil litigation will have to continue helping injured parties get justice.