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Leighton publishes “DWD: Driving While Distracted – The New DUI” starstarstarstarstar

10-17-2010

Driving while distracted (DWD) has become one of the greatest dangers in the world since the saturation of cell phones, smart phones, and other electronic devices. Most drivers readily admit to using their handheld devices while they drive, and many admit to texting while driving.  Recent studies have proven that DWD is equivalent to drunk driving … perhaps worse.  John Elliott Leighton has lectured extensively on DWD and how the civil justice system can create a deterrent effect in order to change societal behavior.  In his recent article, published in the mid year 2010 edition of the South Florida Legal Guide, Mr. Leighton explains how DWD is equivalent to DUI and offers some suggestions on how to stop this conduct.

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SOUTH FLORIDA LEGAL GUIDE
John Elliott Leighton
November 2011

"DWD" (Driving While Distracted):
Florida is Still The Best Place to Text While Driving

By John Elliott Leighton

As of 2011 there were 323 million cell phones in use in the United States, more than the entire country`s population. In recent years, we have seen increased media reports about the significant amount of chatting, texting and emailing that is occurring while driving, resulting in distracted drivers and dangerous accidents. The National Highway Traffic Safety Administration estimates that driving while distracted contributes to one in every four car crashes. By some estimates, in as many as half of all crashes (there were six million last year), cell phone use was involved.

Recent research on distracted driving reveals some surprising facts:

 Using a cell phone while driving, whether handheld or hands-free, delays a driver`s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.
 Using a cell phone while driving reduces the amount of brain activity associated with driving by 37%.
 The phenomenon known as inattention blindness` is a cognitive preoccupation with a conversation that occurs even without the need to hold the phone, which results in a slower reaction time and limits the driver`s ability to detect changes in conditions.
 26% of American teens admit to texting while driving and 48% of teens aged 12-17 say they have been a passenger in a car while the driver was texting.
 200,000 crashes a year are attributed to texting while driving.
 Nearly 6,000 people died in 2008 in crashes involving a distracted driver, and more than half a million were injured.

The widespread awareness of this problem has prompted government concern and states are now addressing the issue legislatively. Some states and municipalities have acted to ban texting while driving and/or driving with a handheld device, while six states – including Florida – have laws that prohibit local jurisdictions from enacting restrictions.  In October 2009, President Obama issued an order banning all 4.5 million federal employees from texting while driving.

Frighteningly, while teens are historically the most dangerous drivers, that danger is only increasing: the average teenager sends more than 3,000 texts per month. Over a trillion texts were sent in 2009 in the U.S. That`s more than six texts per waking hour.  That coincides with the number 1 cause of death for people 16-52: car crashes.  Yet 57% of adults admit to texting while driving.
AAA and Seventeen Magazine found in a joint survey of almost 2,000 teens ages 16-19 that 84% know distracted driving increases their crash risk, yet 86% do it anyway.

Florida is a haven for Texting While Driving

Florida remains only one of a dozen states that have no ban or restriction on texting while driving.  Famously, in 2010 Kim Kardashian photographed a police officer texting while driving and learned that it was not against the law.

During the 2010 Florida Legislative Session, over a dozen bills were introduced relating to distracted-driving.

One of the anti-texting bills filed last year would have made texting while driving a secondary offense.  This means that a driver could not be ticketed unless pulled over for some other violation. This law would have made first time texters face a nonmoving violation and a $30 ticket. This bill was defeated and criticized as not being tough enough. In many states, drivers can be pulled over for texting as a primary offense, and fines or other penalties are much more severe. States with primary enforcement texting bans may also be eligible for extra federal highway funds, and some claim the secondary enforcement laws are simply not as effective.

At least four distracted driving bills have been filed for the 2012 legislative session. Twin bills that would make text messaging while driving a secondary offense have been submitted by Rep. Ray Pilon, R-Sarasota, and Sen. Nancy Detert, R-Venice. Rep. Irv Slosberg, D-Boca Raton, again filed a bill that would ban handheld electronics use by drivers 18 and younger. "Children shouldn`t be on their cell phones (while behind the wheel)," he says. In 2011, the Legislature rejected or ignored all bills that would limit drivers` use of cell phones and text messaging devices. Gov. Rick Scott, a conservative Republican, does not appear supportive of a handheld cell phone ban. In 2011, he vetoed a bill (HB 689) that would have required the DMV to provide education on the dangers of electronic distracted driving

Statistics show that distracted driving is the No. 1 cause of fatal traffic accidents in Broward County, Florida.  Does that tell us anything about traffic safety today?

Creating a Disincentive to Text and Drive: DWD Liability and Punitive Damages

It took many years and a great deal of common law development before drunk driving gave rise to a claim for punitive damages. Over time, legislatures and courts recognized that the voluntary intoxication combined with driving a deadly instrumentality like a car or truck was tantamount to an intentional act. The conduct has been universally recognized as being so grossly negligent such that the imposition of punitive damages is appropriate both as a means to punish the wrongdoer and deter others from committing such acts.

If a driver texting or using a cell phone is as impaired as a drunk driver, as some studies have concluded, it stands to reason that the knowing and voluntary act of texting while driving should also give rise to punitive damages. In many jurisdictions punitive damages are available to victims of drunk driving. The victims of voluntarily distracted drivers, where provable, should be similarly afforded the same remedy.

Another means of creating a deterrent to the use of handheld devices and texting while driving is to hold employers liable for such behavior when committed in the course and scope of employment. Under the doctrine of respondeat superior, the employer may be held liable for the negligent act of its employee while the employee is furthering the employer`s business. Moreover, direct negligence may exist for entrusting or encouraging employees to utilize handheld devices while operating vehicles.

For many high-risk activities, it is only through the civil justice system that true social change will occur. DWD may be one of those activities. Obviously the political forces in Tallahassee have kept Florida from enacting legislation banning this behavior.  Just like with alcohol use, until there are laws AND consequences, behavior will not change.  Imagine what Florida would be like if we allowed drivers to chug beers and vodka while driving down the interstate.  Does anyone think that would make sense?  But the current state of the law on texting and driving is not a whole lot different. Because it is too easy, too accessible, and our world has become too multi-tasking oriented, societal change may require litigation and economic disincentives.  The ability to obtain punitive damages, and hold responsible those who benefit, condone or encourage DWD, is the lynchpin of making this change. Punitive damages are just one tool that the practitioner needs to use to obtain fair justice and reduce the frequency of risky behavior by vehicle operators.
BY JOHN ELLIOTT LEIGHTON, ESQ.
LEIGHTON LAW, P.A.
1401 BRICKELL AVENUE, SUITE 900
MIAMI, FL 33131
-and-
121 South Orange Ave., Suite 1150
Orlando, FL 32801
888-395-0001
www.LeightonLaw.com

DWD – The New DUI – So Fla Legal Guide 20101333740885.pdf

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