Punitive damages are widely used in civil litigation to deter reprehensible conduct. Is the time coming for this measure to apply to texters and motor vehicle crashes?
It is hard to hold drivers responsible for their reckless conduct and get a punitive damages award primarily because judges rely on older cases to deny victims the availability of this type of damages award.
But, with the epidemic of distracted driving accidents, is the tide turning? A bunch of new state laws that more clearly target driver texting may look to push the punitive damages question in front of judges and jurors.
“In the 1960s, drunk driving was the paradigm case for punitive damages in automobile cases; texting while driving may become the paradigm case for the 21st century,” said Catherine M. Sharkey, a professor of law at New York University School of Law.
Punitive damages claims have two purposes:
- Punish the wrongdoer. Rather than “compensatory damages” which are intended to compensate the victim, “punitives” are intended to punish for bad behavior.
- Deter bad behavior. As more and more awards occur and become know, it will become a deterrent to others to avoid the same behavior.
Arizona plaintiffs’ attorney Christopher Zachar, a longtime advocate of victims in motor vehicle crashed and vocal against distracted driving says that distracted drivers seldom face jail time and fines are minimal.
“There are no teeth in Arizona law for distracted driving,” Zachar says. As such, there is no real deterrent to the driver who is going to do this.
The threat of punitive damages can change the equation when it comes to preventing texting and driving. With punitive damages, distracted drivers who put the public and themselves at risk by driving while distracted would now also be putting their life savings, retirement, home, car, boat and kids’ college funds at risk. If someone causes a crash and the punitive damages aren’t covered by insurance, then the punitive damages will have to be paid out of pocket. (Gulp.)
Texting and Distraction
More than 3,400 people were killed and 391,000 hurt in crashes on U.S. roads in 2015 that involved a distracted driver, according to the National Highway Traffic Safety Administration. The federal auto safety regulator found in other research that driver texting is on the rise for all ages, but the highest rate is for those between 16 and 24, and a 2017 study by the AAA Foundation for Traffic Safety found that 87.5 percent of respondents believe distracted driving is a bigger problem now than in past years.
Sending or reading a text takes your eyes off the road for five seconds, NHTSA said. “At 55 mph, that’s like driving the length of an entire football field with your eyes closed,” NHTSA said.
Distracted driving can be categorized three ways:
- Where the driver’s hands are off the steering wheel;
- Where the driver’s eyes are off the road; and
- Where both the driver's mind and focus are diverted.
Texting involves all three types of distractions
Punitives Exceedingly Rare
Despite the seeming disgust with distracted driving, juries are almost never allowed to assess punitives after a driver is found to have caused injuries while texting. Indeed, it is a hit and miss as to whether the trial judge will even allow this issue to go to the jury.
Zachar says he is not sure he has even heard of a jury verdict awarding punitive damages against a driver in a texting injury case.
“This is a newly and rapidly developing theory of the law, although, not rapidly enough,” Zachar said.
Judges historically require additional factors before punitive damages are allowed against a driver (i.e. drug/alcohol influence).
But, as societal views against texting while driving become more discontent and angry, judges and juries are likely to follow suit and be more likely to impose money damage punishments in crash cases.
In 2006, no state banned texting while driving. Currently, 47 states and the District of Columbia ban text messaging for all drivers, according to the Governors Highway Safety Association.
Arizona? Yep, we are one of only three states that have no law against texting and driving. Our legislators say we “don’t need another law on the books”.
Really? Wake up Arizona, and wake up all Arizona drivers. This area of the law is changing, and soon, people will be paying the price when they cause an accident due to distracted driving.