DWD – Driving While Distracted – Has become an epidemic throughout the country. CFBWD is a huge problem – [“Checking Facebook While Driving] – What happens when a distracted driver maims or kills a cyclist?
The typical injury claim is pursued for the injured rider, or the grieving family of a cyclist killed by a distracted motorist. Damages awarded can include paying medical bills, wage loss and out of pocket expenses as well as a significant pain and suffering award. This seems so… inadequate -getting some money from someone’s insurer to cover the damages her/his careless driving has wrought… from the trial lawyer’s perspective, it’s usually the best we can do.
Oh, there may be a criminal case or, more likely, a “traffic” matter. These provide some modicum of satisfaction for some folks… sometimes…
Do “tickets” for texting change driver behavior? Well… first of all, very few tickets are ever written. Do you know anyone who’s got a texting ticket in Ohio? Ever read a story about it? In 2014 the Columbus Dispatch did a story about the limited value of texting laws…
One thing that may work, though, is “punitive” damage claims being brought by the victims.
In the typical injury claim described above there is no “punishment” involved. In fact, a jury in Ohio is instructed by the judge the purpose of “compensatory” damages is NOT to punish, but to make the victim whole. “Compensatory” damages are intended to “compensate” the victim for out-of-pocket losses, wage loss, and pain and suffering. Juries are instructed that sympathy for victim is completely irrelevant when measuring the damages assessed.
A punitive damage claim goes beyond the basic “injury” damages and IS designed to “punish” the wrongdoer with an extra award of money damages to the victim. These are only available in very rare cases in which the victim can prove the wrongdoer acted with “malice” … intentional aggression… OR… if the wrongdoer acted with a “…a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm …”
Punitive damages are unique in that they are NOT covered by insurance. They must be paid directly by the wrongdoer.
Punitive damages claims have come under fire by those seeking “tort deform” …er… “reform.” There are those who feel that the less than 1% of cases seeking punitive damages is just too many… that these claims arising when “malice” is an element need to be reigned in… Doctors paved the tort reform path in Ohio by amending medical malpractice rules in 2003. A Pro Tort Reform legislature followed suit in other tort cases and, after the Ohio Supreme Court became the best court insurance dollars could buy, the reforms were upheld [despite being found by prior versions of the Supreme Court to be unconstitutional…]. Currently, if you are catastrophically maimed in Ohio, your recovery options are severely because the legislature has deemed your injuries to be of less importance than the careless party’s money or insurance… but I digress…
In 1994 the Ohio Supreme Court recognized that evidence of intoxication is sufficient to pursue a punitive damages claim. The court said “…We are convinced that the conduct of drinking and driving may well, under the circumstances of each individual case, constitute the kind of reckless, outrageous behavior justifying a jury to conclude that the defendant possessed a willful indifference to the rights and safety of others justifying an award of punitive damages. We hold that evidence that a negligent driver had consumed alcohol prior to a vehicular accident is relevant and admissible to establish whether the driver can be deemed to have acted with actual malice justifying the award of punitive damages…”
In 2014 a court in Montgomery County upheld a $2.0+ million award against a drunk motorist and the bar serving drinks. The jury included a $50,000 punitive damages award. This case was rather unique because the motorist was a dancer at the club – and was encouraged by the club to drink on the job. She was drunk when she crashed into, and maimed, the victims on her way home from “work”… The award against the club was significant.
In more recent years there have been many studies indicating that texting while driving is far WORSE than drunk driving. Even the venerable “Car & Driver” concluded that texting was far worse than drinking and driving in its admittedly non-scientific testing.
However, there is currently no Ohio Supreme Court case which holds that a motorist who kills or maims while texting or downloading a fax or updating their FB page is sufficient to lead to punitive damages.
We are working on this – lawyers representing victims in Ohio are doing research and filing motions, seeking to have a punitive damage claim added to such cases. In Florida courts have allowed such claims to proceed to the jury.
In this day and age, it should be very clear though the research, as well as the legislative pronouncements, that texting and driving can, and should, lead to serious consequences when the [reasonably foreseeable] catastrophic crash ensues… I hope Ohio joins the growing number of court systems which will allow a punitive damage award in cases in which a texting drivers causes a catastrophic crash.