Distracted Driving [1]
Dale G. Larrimore
Larrimore & Farnish, LLP – Philadelphia, PA
Larrimore & Farnish, LLP – Philadelphia, PA
Distracted drivers
pose a deadly risk to everyone on the road. The National Highway Traffic Safety
Administration (NHTSA) estimates that in 2011, the most recent year for which
data is available, 3,331 people lost their lives and another 387,000 were
injured in distraction-affected crashes.1
Drivers engage in a range of distracting activities from talking and texting on
their phones, to eating, grooming and reading. Even the use of hands-free
technologies isn't without risk as dangerous mental distractions exist even
when drivers keep their hands on the wheel and eyes on the road.2 According to Ray LaHood, former U.S.
Transportation Secretary:
“Distracted driving is an epidemic.
While we've made progress in the past three years by raising awareness about
this risky behavior, the simple fact is people are continuing to be killed and
injured-and we can put an end to it. Personal
responsibility for putting down that cell phone is a good first step-but we
need everyone to do their part, whether it's helping pass strong laws,
educating our youngest and most vulnerable drivers, or starting their own
campaign to end distracted driving.”3
According to the AAA Foundation for
Traffic Safety, distracted driving contributes to thousands of vehicular
crashes every day, and cell phone use alone quadruples a risk of crashing.4 Some activities—such as texting—take
the driver's attention away from driving more frequently and for longer periods
than other distractions and many states are enacting laws banning texting while
driving-helping to raise awareness of the dangers of distracted driving and to
try to keep it from occurring.5
In 2010, the Federal Motor Carrier
Safety Administration enacted a ban that prohibits commercial vehicle drivers
from texting while driving.6
Currently, 41 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban
text messaging for all drivers. An additional six states prohibit text
messaging by novice drivers and three states ban school bus drivers from
texting.7
At the present time no state bans
all cell phone use for all drivers, but 37 states and D.C. ban all cell phone
use by novice drivers and 19 states and D.C. prohibit it for school bus
drivers. Pennsylvania is not one of those states. Twelve states and D.C.
prohibit all drivers from using hand-held cell phones while driving and
beginning in October 2013 these laws will all be primary enforcement—meaning
that an officer may cite a driver for using a hand-held cell phone without any
other traffic offense taking place. Many individual localities have passed
their own distracted driving bans, but some states—including Pennsylvania—prohibit
localities from enacting such laws.8
A jury may consider the fact that a
motorist was talking on a cell phone while driving as one element of
negligence.9 While talking on a
hand-free cell phone may be negligent, it is not now illegal and it does not,
by itself, demonstrate wanton or willful disregard of plaintiff's safety so as
to warrant punitive damages.10
However, where the cell phone use is coupled with evidence that the defendant
was also speeding, or disregarding traffic signals, or otherwise drove
erratically, the combination may warrant punitive damages.11
Drivers may also engage in conduct
while driving a motor vehicle that, although not, per se, a violation of the
Vehicle Code, would still be negligent and careless. A driver who operates a
motor vehicle on the highway while simultaneously playing with the radio, or
eating a sandwich or adjusting his or her hair in the rearview mirror may be
acting in a manner that a reasonably prudent driver would not act. While such
activities have not yet been adopted as criminal conduct under the Vehicle
Code, they do certainly increase the risk that an accident will occur.12
Texting while driving significantly
increases the degree of driver distraction since it requires the motorist to
completely divert his or her attention from the roadway while focusing upon the
mobile device.13 Effective March 9,
2012, the Pennsylvania Vehicle Code bans the use of any form of text messaging
while driving.14 The statute preempts
local ordinances and provides that no driver shall operate a motor vehicle on a
highway or trafficway in Pennsylvania while using an interactive wireless
communications device to send, read or write a text-based communication while
the vehicle is in motion.
A motorist's use of a GPS device
may, or may not, cause distracted driving depending on whether the destination
is already loaded, the type of device, the placement of the device in the
vehicle and the concomitant operation of the vehicle. Most portable GPS devices
can be equipped with brackets that can be mounted on the surface of the
dashboard or affixed to the windshield without obstructing the driver's view of
the roadway or diverting the operator's eyes from the roadway.15 If a GPS device is affixed to the
dashboard or windshield, such that a driver maintains peripheral vision of the
roadway, a motorist's split second glimpse at its screen is akin to a momentary
glance at a speedometer or side or rearview mirror and it does not constitute
reckless indifference or wanton misconduct. However, if a driver completely
diverts his attention from the road to view a GPS device on a seat or in a cup
holder, and continues to travel in his vehicle without any view of the road or
other traffic, he may be deemed reckless.16
The Pennsylvania Vehicle Code also
prohibits, with some exceptions, the operation of a vehicle while using one or
more headphones or earphones.17 It is
not necessary that the headphones be in operation or connected to an operating
radio in order for there to be a violation of the statute. This prohibition of wearing
headphones while driving is consistent with the legal principle that the
legislature, in the proper exercise of its police power, may regulate the use
of the highways of the Commonwealth for the purpose of promoting public safety.18 The statute does allow the use of a
headset in conjunction with a cell phone that only provides sound through one
ear and allows surrounding sounds to be heard with the other ear.19
Although there is no case law yet in
Pennsylvania, other jurisdictions have faced an additional issue with regard to
distracted driving: are there
circumstances or facts under which a non-driver can be liable for distracting a
driver and causing an accident. Certainly, a passenger in a vehicle has a duty
to not interfere with the driver's operation of a vehicle.20 Litigation in North Carolina against
the manufacturer of a text-messaging device being viewed by a truck driver
before an accident was dismissed by the Federal Court in that state, holding
that it was the driver's duty to avoid distraction.21 At least two state courts have declined
to hold manufacturers of cell phones liable for failing to design their
products to prevent harm caused when drivers are distracted by use of their
phones.22
In a well publicized 2013 opinion,
the Superior Court of New Jersey recognized that it is foreseeable that a
driver who is actually distracted by a text message might cause an accident and
serious injuries or death, but held that it is not generally foreseeable that
every recipient of a text message who is driving will neglect his obligation to
obey the law and will be distracted by the text.23
This New Jersey court held that when someone who sends a text message knows or
has special reason to know that the intended recipient is actually driving and
that the recipient is likely to read the text message while driving, the texter
has a duty to users of the public roads to refrain from sending the driver a
text at that time.24
Litigation in North Carolina against
the manufacturer of a text-messaging device being viewed by a truck driver
before an accident was dismissed by the Federal Court in that state, holding
that it was the driver's duty to avoid distraction.25 Additionally, at least two state
courts have declined to hold manufacturers of cell phones liable for failing to
design their products to prevent harm caused when drivers are distracted by the
use of their phones.26
1
Traffic
Safety Facts. Research note, Distracted Driving 2011. (April 2013). National
Highway Traffic Safety Administration, Washington, DC.
2 Strayer, D.L., Cooper,
J.M., Turrill, J., Coleman, J. Medeiros-Ward, N., Biondi, F. (June 2013).
Measuring Cognitive Distraction in the Automobile, AAA Foundation for Traffic
Safety, Washington, DC.
3
U.S.
Census Bureau, Statistical Abstract of the United States, 2012, citing United
States Highway Traffic Safety Administration, Traffic Safety Facts; Injury
Prevention & Control: Motor Vehicle Safety, Centers for Disease Control
and Prevention, http://www.cdc.gov/motorvehiclesafety/distracted_driving;
National Highway Traffic Safety Administration, “U.S. Transportation Secretary
Ray LaHood Issues Blueprint for Ending Distracted Driving” DOT 64-12, Thursday,
June 7, 2012.
5 Centers for
Disease Control & Prevention, National Center for Injury Prevention and
Control, Motor Vehicle Safety, July 29, 2011. Available from cdc.gov/motorvehiclesafety/distracted_driving
6 Federal Motor Carrier Safety
Administration. Limiting the Use of Wireless Communication Devices. Washington
DC: US Department of Transportation, Federal Motor Carrier Safety
Administration, 2011. Available from: http://www.fmcsa.dot.gov.
7 Governors
Highway Safety Association, http://www.ghsa.org.
8 Governors
Highway Safety Association, http://www.ghsa.org.
10 Cf.
Sipler v. Trans Am Trucking, Inc., 2010 WL 4929393 (D.N.J. 2010).
11 Piester v. Hickey, 2012 WL 935789 (E.D.
Pa. 2012). See also McLane v. Rich Transport, Inc., 2012 WL 3257658 (E.D. Ark.
2012); Gaddis v. Hegler, 2011 WL 2111801 (S.D. Miss. 2011); Laney v. Schneider
Nat. Carriers, Inc., 2011 WL 1667434 (N.D. Okla. 2011); Howell v. Kusters, 2010
WL 877510 (Del. Super. Ct. 2010); and Hoskins v. King, 676 F. Supp. 2d 441
(D.S.C. 2009).
12 Com.
v. Mastromatteo, 719 A.2d 1081, 1084 (Pa. Super. Ct. 1998).
14 75
Pa.C.S. §3316.
18 Com. v. Arnold, 215 Pa. Super. 444, 258
A.2d 885 (1969). See also, Com. v. Patchett, 284 Pa. Super. 252, 425 A.2d 798,
800 (1981).
20 See,
e.g., Lombardo v. Hoag, 135 N.J. 469, 640 A.2d 850 (1994); Champion ex rel.
Ezzo v. Dunfee, 398 N.J. Super. 112, 939 A.2d 825 (App. Div. 2008).
21 Durkee v. C.H. Robinson Worldwide, Inc.,
765 F. Supp. 2d 742 (W.D. N.C. 2011), aff'd, 502 Fed. Appx. 326 (4th Cir.
2013), cert. denied, 134 S. Ct. 257, 187 L. Ed. 2d 149 (2013); Durkee v.
Geologic Solutions, Inc., 502 Fed. Appx. 326 (4th Cir. 2013), cert. denied, 134
S. Ct. 257, 187 L. Ed. 2d 149 (2013).
22 See Estate of Doyle v. Sprint/Nextel Corp.,
2010 OK CIV APP 22, 248 P.3d 947 (Div. 2 2010); Williams v. Cingular Wireless,
809 N.E.2d 473 (Ind. Ct. App. 2004).
25 Durkee v. C.H. Robinson Worldwide, Inc.,
765 F. Supp. 2d 742 (W.D. N.C. 2011), aff'd, 502 Fed. Appx. 326 (4th Cir.
2013), cert. denied, 134 S. Ct. 257, 187 L. Ed. 2d 149 (2013); Durkee v.
Geologic Solutions, Inc., 502 Fed. Appx. 326 (4th Cir. 2013), cert. denied, 134
S. Ct. 257, 187 L. Ed. 2d 149 (2013).
26 See Estate of Doyle v. Sprint/Nextel
Corp., 2010 OK CIV APP 22, 248 P.3d 947 (Div. 2 2010); Williams v. Cingular
Wireless, 809 N.E.2d 473 (Ind. Ct. App. 2004).
[1] Excerpted from
Larrimore, Dale, Pennsylvania Rules of
the Road, Vol. 13 of West’s Pennsylvania Practice Series, 2016-2017
Edition, Section 7:11.Copyright Thomson Reuters.
