LIABILITY FOR DISTRACTED DRIVING

LIABILITY FOR DISTRACTED DRIVING Presented and Prepared by: Heidi E. Ruckman hruckman@heylroyster.com Rockford, Illinois 815.963.4454 Prepared with the Assistance of: Meg F. Hogan mhogan@heylroyster.com Rockford, Illinois 815.963.4454 Heyl, Royster, Voelker & Allen PEORIA CHICAGO EDWARDSVILLE ROCKFORD SPRINGFIELD URBANA 2015 Heyl, Royster, Voelker & Allen C-1

LIABILITY FOR DISTRACTED DRIVING I. DISTRACTED DRIVING STATISTICS... C-3 II. STATUS OF THE LAW IN ILLINOIS... C-3 A. Overview... C-3 B. Applicable Statutory Language... C-4 III. CASE LAW IN OTHER JURISDICTIONS ADDRESSING THE ISSUES RELATED TO DISTRACTED DRIVING... C-7 A. Use of cell phone did not justify punitive damages... C-7 B. Use of cell phone may justify punitive damages... C-7 C. A person texting to a driver can potentially be liable for persons injured because the driver was distracted by the text... C-8 D. Cell phones are not subject to search without a warrant... C-8 IV. LIABILITY FOR DISTRACTED DRIVING... C-9 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. C-2

LIABILITY FOR DISTRACTED DRIVING I. DISTRACTED DRIVING STATISTICS Distracted driving encompasses several behaviors of drivers including, but not limited to the use of their cell phones, eating, grooming, and manipulating radio dials. On any given day, there are 660,000 drivers using cell phones or manipulating electronic devices while driving. Traffic Safety Facts-Research Note, National Highway Traffic Safety Administration, U.S. Department of Transportation (2013). In addition, there are approximately 153.3 billion text messages sent in the United States every month. www.distraction.gov/stats-research-laws/facts. In 2013, there were 3,154 people killed and 424,000 people injured as a result of distracted driving. Id. An average text message causes the driver to take his or her eyes off the road for 5 seconds. When traveling 55 miles per hour, this is enough time to cover the length of a football field. www.stoptextsstopwrecks.org. According to the Illinois State Police, the use of a cell phone increases the chances of an accident by 400%. Distracted Driving Safety Brochure, www.isp.state.il.us/traffic/distractdrive.cfm. Illinois has enacted two statutes which are aimed at reducing a driver s use of a cell phone in an effort to battle this growing public safety hazard. The battle against distracted driving began at the municipality level. In 2008, Chicago passed a municipal ordinance which prohibited the use of wireless phones without a hands free device. Several other municipalities followed suit. Various versions of the Wireless Telephones and Electronic Communication Devices statutes have been in effect since 2010. These materials briefly address the most recent version of both statutes. II. STATUS OF THE LAW IN ILLINOIS A. Overview Illinois has joined 40 other states and the District of Columbia in enacting laws which ban texting or the use of a cell phone which is not hands free while driving. National Highway Traffic Safety Administration, Digest of Distracted Driving Laws, at vi (1st ed. 2012). https://mcs.nhtsa.gov/index.cfm/product/891/digest-of-distracted-driving-laws-first-edition.cfm. Although speaking on a hand-held cell phone causes a distraction, it has been noted that text messaging is one of the most alarming distractions "[b]ecause text messaging requires visual, manual, and cognitive attention from the driver Id. at iv. The statutes enacted prohibit the use of any cell phone by a driver operating a vehicle unless using a hands free device. Likewise, the statutes prohibit all together the use of any cell phone by a novice driver, and no driver, regardless of age, may use a cell phone in a construction zone or in a school zone. C-3

B. Applicable Statutory Language 625 ILCS 5/12-610.1 Wireless Telephones. (a) (b) As used in this Section, wireless telephone means a device that is capable of transmitting or receiving telephonic communications without a wire connecting the device to the telephone network. A person under the age of 19 years who holds an instruction permit issued under Section 6-105 or 6-107.1, or a person under the age of 19 years who holds a graduated license issued under Section 6-107, may not drive a vehicle on a roadway while using a wireless phone. (b-5) A person under the age of 19 commits aggravated use of a wireless telephone when he or she violates subsection (b) and in committing the violation he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death to another and the violation was a proximate cause of the injury or death. (c) (d) (e) This Section does not apply to a person under the age of 19 years using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity. If a graduated driver s license holder over the age of 18 committed an offense against traffic regulations governing the movement of vehicles or any violation of Section 6-107 or Section 12-603.1 of this Code in the 6 months prior to the graduated driver s license holder s 18th birthday, and was subsequently convicted of the violation, the provisions of paragraph (b) shall continue to apply until such time as a period of 6 consecutive months has elapsed without an additional violation and subsequent conviction of an offense against traffic regulations governing the movement of vehicles or any violation of Section 6-107 or Section 12-603.1 of this Code. A person, regardless of age, may not use a wireless telephone at any time while operating a motor vehicle on a roadway in a school speed zone established under Section 11-605, on a highway in a construction or maintenance speed zone established under Section 11-605.1 or within 500 feet of an emergency scene. As used in this Section, emergency scene means a location where an authorized emergency vehicle as defined by Section 1-1-5 of this Code is present and has activated its oscillating, rotating, or flashing lights. This subsection (e) does not apply to (i) a person engaged in highway construction or maintenance project for which a construction or maintenance speed zone C-4

has been established (ii) a person using a wireless telephone for emergency purposes, including but not limited to, law enforcement agency, health care provider, fire department, or other emergency services (iii) a law enforcement officer or operator of an emergency vehicle when performing the officer s or operator s official duties, (iv) a person using a wireless telephone in voiceoperated mode, which may include the use of a headset, (v) a person using a wireless telephone by pressing single button to initiate or terminate a voice communication; or (vi) a person using an electronic communication device for the sole purpose of reporting an emergency situation. (e-5) A person commits aggravated use of a wireless telephone when he or she violates subsection (e) and in committing the violation he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death to another and the violation was a proximate cause of the injury or death. (f) A person convicted of violating subsection (b-5) or (e-5) commits a Class A misdemeanor if the violation resulted in great bodily harm, permanent disability, or disfigurement to another. A person convicted of violating subsection (b-5) or (e-5) commits a Class 4 felony if the violation resulted in the death of another person. 625 ILCS 5/12-610.2 Electronic Communication Devices. (a) As used in the Section: Electronic communication device" means an electronic device, including but not limited to a hand-held wireless telephone, hand-held personal digital assistant, or a portable or mobile computer, but does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle. (b) A person may not operate a motor vehicle on a roadway while using an electronic communication device. (b-5) A person commits aggravated use of an electronic communication device when he or she violates subsection (b) and in committing the violation he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death to another and the violation was a proximate cause of the injury or death. (c) A second or subsequent violation of this Section is an offense against traffic regulations governing the movement of vehicles. A person who violates this C-5

Section shall be fined a maximum of $75 for a first offense, $100 for a second offense, $125 for a third offense, and $150 for a fourth or subsequent offense. (d) This Section does not apply to: (1) a law enforcement officer or operator of an emergency vehicle while performing his or her official duties; (2) a driver using an electronic communication device for the sole purpose of reporting an emergency situation and continued communication with emergency personnel during the emergency situation; (3) driver using an electronic communication device in hands-free or voiceoperated mode, which may include the use of a headset; (4) a driver of a commercial motor vehicle reading a message displayed on a permanently installed communication device designed for a commercial motor vehicle with a screen that does not exceed 10 inches tall by 10 inches wide in size; (5) a driver using an electronic communication device while parked on the shoulder of the roadway; (6) a driver using an electronic communication device when the vehicle is stopped due to normal traffic being obstructed and the driver has the motor vehicle transmission in neutral or park; (7) driver using two-way or citizens band radio services; (8) a driver using two-way mobile radio transmitters or receivers for licensees of the Federal Communications Commission in the amateur radio service; (9) a driver using an electronic communication device by pressing a single button to initiate or terminate a voice communication; or (10) a driver using an electronic communication device capable of performing multiple functions, other than a hand-held wireless telephone or handheld personal digital assistant (for example, a fleet management system, dispatching device, citizens band radio, or music player) for a purpose that is not otherwise prohibited by this Section. (e) A person convicted of violating subsection (b-5) commits a Class A misdemeanor if the violation resulted in great bodily harm, permanent disability C-6

or disfigurement to another. A person convicted of violating subsection (b-5) commits a Class 4 felony if the violation resulted in the death of another person. III. CASE LAW IN OTHER JURISDICTIONS ADDRESSING THE ISSUES RELATED TO DISTRACTED DRIVING The United States Court of Appeals for the Seventh Circuit rejected constitutional challenges to section 610.1. Schor v. City of Chicago, 576 F.3d 775 (7th Cir. 2009). At this time, there are no Illinois cases which have addressed 625 ILCS 5/122-610.2. Nevertheless, there are a few cases in other jurisdictions which have addressed the issues relating to the use of cell phones and distracted driving. Some of these cases are explained below. A. Use of cell phone did not justify punitive damages In Pennsylvania, the plaintiff alleged that the defendant was on his cell phone at the time of the accident and as a result entered into her lane of travel causing the collision. Xander v. Kiss, No. CV-2010-11945, 2012 Pa. Dist. & Cnty. Dec. LEXIS 1 (Pa. Ct. Com. Pl. Jan. 11, 2012). The plaintiff argued that the defendant's distracted driving was a sufficient basis to award punitive damages. The court disagreed and pointed out that "punitive damages are defined by Section 908(1) of the Restatement (Second) of Torts as damages other than compensatory or nominal, awarded against a person to punish him for outrageous conduct.'" Id. at *2, citing McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053, 1061 (Pa. Super. Ct. 1992). As such, punitive damages can be awarded when the act is done with reckless disregard as well as a bad motive. Id. The court in this case found the defendant "simply [losing] control of his vehicle while speaking on his cellular telephone, causing a motor vehicle accident..." would only establish a prima facie claim for negligence. Id. at *2-3. It did not rise to the level of establishing a defendant's reckless indifference or evil motive. Id. at *3. Nevertheless, the court noted that when the use of a cell phone was coupled with another indicator of reckless disregard, such as speeding, failing to observe a traffic light or attempting to prohibit a driver from passing, it may result in a different outcome. Id. B. Use of cell phone may justify punitive damages The United States District Court for the Eastern District of Pennsylvania found that the use of a cell phone at the time of the accident may be used by a plaintiff to support an award of punitive damages. In Pennington v. King, a semi driver was talking on his cell phone at the time of the collision with the decedent. The semi driver's right front struck the left rear of the decedent's vehicle as she attempted to pass. There was testimony that the semi driver sped up to 75 miles per hour as the decedent attempted pull in front of him. 2009 U.S. Dist. LEXIS 12779, *5 (E.D. Pa., Feb. 19, 2009). To complicate the matter, the semi driver's toxicology report came back revealing he had the presence of marijuana in his blood, which he admitted he had smoked two days prior to the accident. Id. However, two investigating officers, the sergeant and the witness agreed the C-7

driver did not appear to be under the influence at the scene. Id. at *7-9. As a result, the court held that the use of marijuana would be excluded at trial, because intoxication/impairment could not be proven. Id. at *12. The court went on to deny the defendant's Motion for Partial Summary Judgment as to the claims for punitive damages, holding that a jury may find that the semi driver was distracted by his cell phone use and operated his vehicle erratically: "Such a finding might satisfy the 'intentional or willful, wanton or reckless conduct' standard to support a finding for punitive damages." Id. at 21 (citing SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). C. A person texting to a driver can potentially be liable for persons injured because the driver was distracted by the text In New Jersey it is illegal to text while driving, and a driver must use a hands free device. The law imposes criminal penalties on a driver who is distracted by using a cell phone while driving and injures another. "The new law explicitly permits a jury to infer that a driver who was using a hand-held cell phone and caused injury in an accident may be guilty of assault by auto, a fourthdegree crime if someone was injured seriously, thus exposing the driver to a potential sentence in state prison." Kubert v. Best, 432 N.J. Super. 495, 75 A. 3d 1214 (N.J. Super. 2013). In Kubert v. Best, a 19-year-old driver crossed the center line and hit the plaintiffs, who were riding on their motorcycle. Id. at 503. The 19-year-old had punched out of work and exchanged various text messages with his friend. Id. at 504-506. In fact, phone records were used to demonstrate that 17 seconds elapsed from the time the driver sent a text to his friend and the time he called 911 after the accident. Id. at 506. The plaintiffs sued the driver and the friend. The driver settled with the plaintiffs. The friend/texter then filed a motion to dismiss. The court affirmed the lower court's dismissal of plaintiffs' complaint against the sender of the texts, but did not agree with the lower court's ruling that the texter did not have any legal duty to avoid sending texts to a driver. Id. at 507. The court held that a sender of texts may have a duty not to text a driver if the texter knows or has special reason to know the driver will read the text message while driving. Id. When that is the case, the texter "has a duty to users of the public roads to refrain from sending the driver a text at that time." Id. at 519. D. Cell phones are not subject to search without a warrant Although Riley v. California did not address the issue of distracted driving, the court did hold a police officer may not search a driver's cell phone without a warrant. 134 S.Ct. 2473 (2014). In Riley, the plaintiff/petitioner was stopped for a traffic violation and arrested on weapons charges. Id. at 2480. The officer seized his cell phone, and it was later examined at the police station. They found photographs on his cell phone and videos that tied the driver to a prior shooting. Id. at 2481. The driver moved to suppress the evidence obtained from his cell phone. The trial court denied the motion, resulting in a conviction for the shooting. Id. The appellate court affirmed the conviction. Id. The United States Supreme Court reversed the conviction, finding that police generally may not, without a warrant, search the information contained on a C-8

cell phone that has been seized from a person who has been arrested. Id. This ruling was based on the Fourth Amendment, which prohibits unreasonable searches and seizures. Id. at 2482. IV. LIABILITY FOR DISTRACTED DRIVING These cases shed light on some of the issues that will need to be considered when defending a distracted driving case. It will be important to determine whether the accident involves distracted driving at the outset. Certainly, if the accident has resulted in great bodily harm or death of another, there may be significant criminal implications in addition to the civil case. Furthermore, these statutes create another basis for a plaintiff to allege negligence. It is an open question whether Illinois courts will find that distracted driving is a basis for punitive damages. Parties should be ready to address discovery requests seeking cell phone numbers and phone records. In some cases, plaintiff's counsel may delay until the deposition to question the defendant about cell phone use, cell phone numbers and the provider, and only then subpoena the records. Furthermore, if the case proceeds to trial, defense counsel will need to consider whether a motion in limine could be filed seeking to bar evidence of cell phone use or distracted driving, arguing it was not a proximate cause of the accident or unduly prejudices the defendant. These issues will most likely be decided on a case-by-case basis that centers around the specific underlying facts. C-9

Heidi E. Ruckman - Partner Heidi joined the firm's Rockford office in 2006 and became a partner in 2012. She concentrates her practice in civil defense litigation, including premises and auto litigation, business related disputes, and the defense of toxic tort and asbestos claims. She began practicing law in 2000 and has experience in the areas of personal injury defense and related insurance matters. She has represented corporate clients in contract and business related disputes. These clients have included mortgage companies, construction companies, excavation companies, gas station owners, disposal companies, farm chemical companies, automobile dealerships, and real estate companies. Heidi has also represented municipalities in various litigation matters and zoning issues. She has tried a number of these cases to verdict. Public Speaking Speedy Payments of Settlements Under the New Law Winnebago County Bar Association (2014) Write that Check-Payments of Settlements 29th Annual Claims Handling Seminar (2014) Premises Liability Update 27th Annual Claims Handling Seminar (2012) Premises Liability Case Updates Winnebago County Bar Association (2011) Building a Solid Foundation for Defense: Statement Taking Techniques 26th Annual Claims Handling Seminar (2011) Professional Associations Winnebago County Bar Foundation, Board of Directors Winnebago County Bar Association (Chair, Trial and Appellate Section) Illinois State Bar Association Winnebago County Arbitrator Defense Research Institute (DRI), Member Association of Defense Trial Attorneys (ADTA) Court Admissions State Courts of Illinois United States District Court, Northern District of Illinois Education Juris Doctor, The John Marshall School of Law, 2000 Bachelor of Arts-Political Science with an emphasis on public law (summa cum laude), Northern Illinois University, 1997 C-10 Learn more about our speakers at www.heylroyster.com