James Caskey was killed in 2008 while riding his bike in Florida. His estate sued the Lawrence Daniels, the motorist that hit him – nothing unusual there, happens all the time. The twist in this case is that Caskey’s estate claims Daniels was texting at the time of the crash – and the judge has ruled that evidence of texting is sufficient to allow the jury to consider PUNITIVE damages as well as the usual compensatory damges. This is, it is claimed, a case of first impression in the United States.
That last paragraph may be confusing to some of you. Let’s start, as we must, at the beginning. In Florida, as in every state, if someone driving a car operates the car negligently and, as a result, a cyclist is hurt of killed then a “civil” claim arises. ”Civil” claims are claims made by people against other people for money damages. ”Criminal” cases are cases in which the “State” seeks to punish citizens for violating criminal laws – while fines may be imposed, the loss of freedom through forced incarceration is what separates “criminal” cases from “civil.”
The money damages in 99% of civil cases are “compensatory” damages – damages based on compensating the injured party, or the next of kin, for losses suffered. The court instructs the jury that compensatory damages are NOT designed to punish the wrong-doer, but to compensate the victim for what was taken away. Compensatory damages include medical bills, lost wages and other out of pocket expenses as well as money to compensate for pain and suffering and other losses.
In a limited number of civil cases, though, juries are permitted to consider imposing damages designed to punish the wrongdoer. In Ohio, for example, the new punitive damages statute states that the plaintiff must prove “… (1) The actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate….”
Punitive damages are awarded, then, in egregious cases – not your run-of-the-mill, “oops I was twiddling the radio dial when I hit you” cases. Punitive damages have been argued and permitted in DUI cases. However, according to the lawyers in the Caskey case, juries have never considered an award of punitive damages in a “Texting” case. This is what is meant by the phrase “case of first impression.”
The other thing about punitive damages is that they are generally NOT covered by insurance. You buy insurance to protect you if you are “negligent” or careless. However, you cannot buy insurance to protect you if you act so egregiously and maliciously as to permit a jury to punish you buy awarding punitive damages. This is another reason that punitive damages don’t pop up all that often in auto cases – unless you have a driver with “deep pockets” you will never collect them because insurance companies don’t pay “puni’s.”
In the Florida case, though, you’ve got all the ducks lined up in a row. The motorist, Mr. Daniels, is a pharmaceutical rep and his employer, Astellas Pharma US Inc, owns the car that Daniels was driving when he hit and killed Caskey. You’ve got the deep pockets that can actually PAY punitive damages if the jury awards them even though Daniels has filed bankruptcy. Bob Mionske reports that “The lawsuit contends Daniels was texting and intentionally took his eyes off the road, causing the crash. His conduct was so reckless, the lawsuit says, that it constituted a conscious disregard or indifference to the life, safety or rights of others, including Caskey.”
Daniels denies that he was texting. He claims he “… texted before leaving home, tossed his phone in a box on his back seat and headed to work, unaware of the texted reply….” His lawyer claims that Caskey is responsible for the crash because he was “… riding the low-lying bike…” – a completely “legal” three-wheeled racing recumbent.
Caskey family lawyers were suspicious, though, since the crash occurred in broad daylight on a road with no other obstructions… why DIDN’T Daniels see the bike and rider?
Daniels says he wasn’t texting but… the electronic data suggests otherwise.
“… An eyewitness estimated he called 911 within 20 or 25 seconds of the crash. Collier sheriff’s records, set by satellite, clocked it at 9:04:38 a.m. Daniels’ phone records show he checked his voicemail at 9:03 a.m., texted between 9:03:01 and 9:03:59, and received a text message around 9:04:01….” So, clearly there is evidence in the record that supports a finding that the motorist was texting at the time of the crash – evidence which disputes the “tossed the phone in the backseat” defense…
Judge Hugh Hayes is pushing the envelope – in the right direction by my way of thinking. Texting has been studied … a lot. Several studies indicate that texting is actually more dangerous than drunk driving. That makes sense, eh. Drunks are, usually, TRYING to drive right – they are trying to see, trying to control their cars, but their brains, eyes, reflexes and decision making is impaired. Texters are, in essence, “controlling” a two ton bowling ball to move forward while blindfolded. The texter can’t see ANYTHING that is in the car’s path. The drunk loads himself up with poison and drives while impaired – the texter intentionally looks away from the roadway and “impairs” him/herself.
We will wait and see what happens in Florida… and hope that this way of looking at texting behavior expands to other states, including Ohio…