Injuries from distracted driving in the United States have become an epidemic. Nationwide nearly six thousand people died from distracted driving in 2008. Over thirteen hundred people are injured on our nation’s highways every day from distracted driving. Drivers who use hand held devices while driving are four times as likely to get in an automobile collision. Driving while using a cell phone reduces brain activity by thirty seven percent. According to the National Highway Transportation Safety Administration , twenty percent of all car crashes that occurred in 2008 were the result of distracted driving. Exact statistics are not available for Connecticut. However, since 2005, over One Hundred and Seventeen Thousand distracted driving citations have been issued in Connecticut.
Residents of Norwalk and New Canaan Connecticut know all too well the damage that can be done form distracted driving. On March 24, 2012, Kenneth Dorsey was jogging on New Canaan Avenue in Norwalk in preparation for an upcoming marathon. A teenager who was driving a sport utility vehicle on that road ran him over and killed him. Later, when the teenager, who was a minor, turned herself in to the police, it was determined that she had been texting someone on her cell phone at the time that she struck him. She was charged as a minor with negligent homicide.
In response to this tragic death, a movement began in Connecticut to increase the penalties for distracted driving in Connecticut. In 2014, Governor Dannel Malloy signed into law an increase in the possible punishment for people who are caught driving while distracted to include fines of up to $1000. Of course, if an individual is injured or killed as in the above case, the penalties can be more severe. In addition to the criminal penalties however, people must be aware of the civil liability that is involved. Driving while distracted is clearly negligent. In all civil cases for money injuries, the plaintiff must prove that what the defendant was negligent. But some cases are automatically treated as negligence. In other words, the plaintiff must only prove that the defendant was driving while distracted, and if this proven, then the jury is required to conclude that the defendant was negligent. Of course the plaintiff must also prove that the distracted driving caused the injuries.
Even more concerning for distracted drivers should be the possibility of double and treble damages for distracted driving. Connecticut General Statutes Section 14-295 states:
“ In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”
This statute must also be read in conjunction with Connecticut General Statute 14-222 which prohibits drivers of automobiles from driving recklessly. When reading these two statutes together it becomes clear that a person who drives their vehicle recklessly could be subject to double or treble damages. Under the rule of double or treble damages, if a jury determined that the defendant acted recklessly, then the jury would make a determination of the amount of damages that it thinks is fair for a specific injury, and then double or triple that amount into a final award.
Under our law distracted driving could indeed be considered reckless driving. Driving while intoxicated could be shown to be reckless driving. In Connecticut, the Supreme Court has not provided guidance on what a party must show to prove recklessness for the purpose of Connecticut General Statute 14-222 and 295. The Superior Courts are split on the requirements of what must be pleaded. The majority of the courts merely require that the plaintiff plead that the defendant’s actions were “deliberate and with reckless disregard” of one of the statutes stated in CGS 14-295, and that the defendant’s actions were a substantial factor in causing the defendant’s injuries. The minority view requires the plaintiff to allege additional facts that add to the defendant’s conduct to make his or her conduct reckless.
In one case, the defendant rolled through a stop sign during evening hours and hit a passing car which had its lights on and which had the right of way. In that case, the plaintiff alleged a standard count of negligence for running the stop sign. In a separate count the plaintiff further alleged that running through the stop showed that the defendant was distracted in his driving and was therefore driving while distracted. The Superior Court judge in this case upheld these allegations as sufficient under either the minority or majority view.
In addition to statutory double or treble damages, a plaintiff can also seek punitive damages which are available against people who have acted recklessly. The common law is the law that is not made by legislatures, but by judges and is contained in cases decided by our courts. Whenever there is a conflict between the common law and that made by the legislature, the legislatively made law is controlling. Recklessness under our common law requires a ‘Conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts that would disclose this danger to any reasonable man…. and the actor must recognize that his conduct involves risk that is substantially greater …than that which is necessary to make his conduct negligent.” In the case of distracted driving, a person who drives while texting or using a cell phone has made a conscious choice to engage in conduct which is significantly more dangerous than mere negligence.
Clearly distracted driving renders a person subject to either punitive damages under the common law or double or treble damages under our statutes. Either way the penalties for distracted driving can be extremely high even after one has dealt with the fines or possible criminal penalties for distracted driving. Somehow we must come to an understanding that that phone call or text can wait until we are off the road.