The New California Cellphone Law And Negligence Cases – CA

An expanded cellphone law that its author says is designed to “prevent distracted driving” takes effect this coming January 1.

The move takes place as cellphone use while driving has expanded in California and elsewhere. As a result, CHP spokesperson Jon Sloat called the bill “welcome news” for law enforcement. Beginning in January, officers will write tickets whenever they see drivers using cellphones, whether they are talking, texting, “checking their GPS or their music,” he added. The bill’s primary sponsor was Assembly-member Bill Quirk (D-Hayward).

Last year, cellphone related crashes killed sixteen Californians and injured 500 others, and Officer Sloat believes these numbers are vastly under-reported.

The California Cellphone Law

When lawmakers began debating the current cellphone laws a little over a decade ago, most available devices were quite rudimentary compared to the ones of today, and the more advanced models were often priced out of reach of many drivers. Moreover, social media platforms and smartphone apps were not nearly as well-developed then as they are today. As a result, since most people still used their phones primarily for talking and texting, the Legislature passed very narrowly tailored laws to address these concerns.

In 2014, the Fifth District Court of Appeal court ruled in favor of Steven Spriggs, who received a ticket for using his cellphone to access a GPS map while he was stuck in traffic. The court ruled that since Mr. Spriggs was not talking on his phone at the time, the statute as written did not apply. “We conclude the statute means what it says — it prohibits a driver only from holding a wireless telephone while conversing on it,” the court wrote. At the time, the CHP elected not to appeal this decision, probably because the court was clearly correct in its interpretation of the narrow law.

A.B. 1785 passed by wide margins in both the Assembly and the Senate. It essentially replaces the existing “talking and texting” language with the phrase “holding or operating a handheld wireless telephone or an electronic wireless communications device.” The law also limits the use of cellphone mounts.

Direct Evidence of Negligence

When drivers are cited for violating the new Vehicle Code 23123.5, prosecutors must still prove that the driver was using the device and not checking the time, glancing at a status update, declining an incoming call, or otherwise using the device in an approved way. However, in civil court, the burden of proof is lower. So, evidence that a cellphone was on and was in the front passenger area would probably be sufficient for a reasonable juror to conclude that, more likely than not, the driver was using the device at or near the time of the crash.

It is well-settled law in California that most statutory violations, including VC 23123.5 infractions, constitute negligence per se (negligence “as such”). The elements are:

  • Infraction: The jury must determine, based on the evidence, that the tortfeasor (negligent driver) violated a safety law; the jury could make such a finding even if the tortfeasor was not convicted in criminal court, because of the lower standard of proof.
  • Cause: The violation must have been “a substantial factor in bringing about the harm,” which is not the same thing as the sole factor in bringing about the harm.

Violating a traffic or other law sometimes raises a presumption in favor of additional punitive damages. To obtain these damages, the plaintiff must offer clear and convincing evidence that the tortfeasor recklessly disregarded the safety and property of others, and 90 percent of drivers agree that using a cellphone while driving is a serious hazard.

Indirect Evidence

Cellphone use is one of the most dangerous kinds of distracted driving because it involves all three areas of distraction:

  • Cognitive (taking your mind off the road),
  • Visual (taking your eyes off the road), and
  • Manual (taking at least one hand off the wheel).

This definition obviously encompasses a wide array of behaviors that may or may not cause car crashes. For example, since it involves two types of distraction (cognitive and visual), turning one’s head to speak to a passenger is almost as distracting as using a cellphone. In these situations, the jury determines if the driver breached the duty of reasonable care. In a nutshell, there is a significant difference between having an emotional face-to-face discussion with a significant other while driving and turning one’s head for a moment to ask if the air conditioner is blowing too hard.

In both direct and indirect evidence cases, compensatory damages generally include money for economic damages, such as lost wages, and noneconomic damages, such as loss of enjoyment in life. If you’ve been injured, make sure to see our guide on how to find a good personal injury lawyer in California.

Understanding Bicycle Accidents – Nevada

According to the National Highway Traffic Safety Administration, around 50,000 people per year are injured in bicycle crashes. But researchers estimate that only about one in ten injury bicycle crashes are reported to police, so the actual number is probably more like 500,000 people a year, or roughly 1,300 per day.

These incidents are very common in Nevada, due to the almost year-round warm weather and the opportunities for both urban and off-road biking. Yet despite the number of bicyclists in the state, bicycles are not “vehicles” according to Nevada law. This distinction, which is somewhat unique to the Silver State, has some effect on liability in bicycle accidents.

First Party Liability in Bicycle Accidents

Despite their special status, bicycles are still subject to all the normal “rules of the road,” including right-of-way. Nevada also has two versions of a move-over law. On multi-lane roads, if a bicyclist is in the right lane, drivers must move into one of the other lanes if at all possible; on single-lane roads, drivers must give bicyclists at least a three-foot cushion when passing.

This law is an important tool in negligence cases, because if a motor vehicle collides with a bicycle, the tortfeasor (negligent driver) is presumptively liable for damages under the negligence per se (negligence “as such”) rule. In most negligence cases, the plaintiff must prove five elements – duty, breach, cause-in-fact, proximate cause, and damages. However, in negligence per se cases, the plaintiff must only establish:

Violation of Statute: The tortfeasor must break a safety law, such as driving while under the influence of alcohol, ignoring a traffic control device, speeding, or not giving a bicyclist sufficient room; non-safety laws, like an emissions violation or an expired drivers’ license, do not count. The three-foot measurement is often rather subjective, but if a car makes contact with a bicycle, it is quite clearly less that three feet away from it.

Cause: There must be a direct connection between the statutory violation and the victim’s damages. If a motorist brushes too close to a bicyclist who then veers off the road and strikes a pedestrian, the pedestrian’s injury may or may not be foreseeable under Nevada law.

Damages: Although the victim must sustain a tangible injury, such as a personal injury from a fall or property damage to the bicycle, the victim is also entitled to compensation for intangible and noneconomic losses.

Negligence per se also creates a presumption in favor of punitive damages in Nevada, and in recent years, judges have been much more willing to instruct juries in this regard. Essentially, the victim is entitled to additional damages if the jury concludes that the tortfeasor (negligent driver) acted with conscious indifference for the safety and property of others. In the liability portion of a trial, the victim must establish negligence by a preponderance of the evidence, but in the punitive damages portion of a trial, the victim must present clear and convincing evidence. A damages cap may also apply, in some cases.

Third Party Liability in Bicycle Accidents

A little over 12 percent of Nevada drivers are uninsured, which is slightly below the national average. That’s probably because the Silver State has one of the lowest auto insurance requirements in the Union. So while most drivers technically have insurance, in many cases they are under-insured, because their policy limits are insufficient to cover the victim’s losses, especially if the collision involves a catastrophic injury, like a wrongful death.

In some cases, under-insurance is not a factor, because most people have at least some assets and tortfeasors are usually personally liable for any part of a judgement that the insurance company does not pay. In other cases, there may be an applicable third party liability theory. Some common employer liability theories include:

Respondeat Superior: If the tortfeasor was an employee acting within the scope of employment, respondeat superior (“let the master answer”) applies and the employer is liable for at least some of the damages. Almost all workers are “employees” for negligence purposes, even if their bosses classify them as something else. Moreover, employees were within the course and scope of employment if they were doing anything of value to the employer.

Negligent Entrustment: If respondeat superior does not apply, the employer can still be liable, because bosses have a duty to carefully hire their workers and properly supervise them while they are on the job.

In terms of third party alcohol liability, Nevada does not have a dram shop law that holds alcohol providers liable if their customers negligently injure someone else. However, negligent undertaking is a recognized third-party theory. Assume Party Host promises to take Intoxicated Guest home but fails to do so, and IG crashes into a bicyclist on her way home. Under those facts, PH could be liable for the victim’s damages.

Liability

In a few cases, fault in a car crash is rather easy to establish. For example, if Debra Defendant is talking on her cellphone while driving her own vehicle on her own time when she rear-ends Paula Plaintiff, who is stopped in traffic and waiting at a red light, Debra is clearly at fault and clearly responsible for Paula’s damages.

But assume Paula pulled out in front of Debra in traffic and Debra rear-ended Paula. Who is at fault in that scenario? Or assume Debra was hauling goods for XYZ Company in a delivery truck when she hit Paula. Who is responsible for damages in that scenario?

Liability is a two-part inquiry. First, the responsible party, or responsible parties, must be identified. Second, the appropriate party, or parties, must pay damages.

First Party Liability in Car Crashes

The crash between Debra and Paula did not happen by chance or by accident. Most likely, the choices both parties made in the hours, minutes, and moments before the collision caused the wreck.

Decisional liability has to do with the choices made, or not made, before operators start driving. Typically, these decisions revolve around the three types of impairment. Although the sources (alcohol, drugs, and fatigue) are very different, the effects are quite similar.

In most cases, drivers are alcohol-impaired after only one drink. Alcohol is an antidepressant, so people who drink nearly always experience a sense of release and euphoria. When it comes to driving, this feeling of euphoria often means that operators are slower to recognize dangerous situations and more willing to push the envelope in terms of their driving habits. That extra few ticks on the speedometer or half-second delay before tapping the brakes can mean the difference between a safe drive home and a serious injury collision. There are also physical symptoms, such as blurred vision and slower reaction times, that are extremely dangerous when operating heavy machinery, including motor vehicles.

Contrary to popular myth, much drugged driving results from abuse of prescription and over-the-counter medications. Many painkillers and antidepressants are very powerful and have serious side-effects even when patients take them exactly as directed. Taking too many pills, or taking pills while not under a doctor’s care, can be even worse. Similarly, many over-the-counter sleep aids and other medicines have active ingredients that required prescriptions just  few years ago.

Fatigued drivers have many of the same issues as drugged and drunk drivers. In fact, driving after eighteen consecutive waking hours is like driving with a .08 BAC, which is above the legal limit in both Nevada and California. Moreover, most of the tips and tricks that observers once suggested, like turning up the radio volume, may make drivers feel more alert for a few minutes, but the effect quickly passes. Also, these tricks do nothing to remedy the impaired judgement and motor skills associated with fatigued driving.

Behavioral liability, or the choices that drivers make just before the crash, is the second liability area. Typically, behavioral liability is associated with motor vehicle code violations, like speeding, illegal lane changes, ignoring traffic control devices, and the like. Distracted driving is also a serious issue, which is why California lawmakers recently expanded the cellphone ban. Previously, the ban only applied to talking or texting; the amended VC 23123.5, which takes effect January 1, makes it illegal to “use or hold” a cellphone or other electronic device.

Finally, there is environmental liability. Many drivers fail to adjust to adverse conditions, like rain or darkness, by slowing down and driving more carefully. Additionally, although it is easier to drive on familiar streets than unfamiliar ones, many drivers do not acknowledge or appreciate the difference.

In most car crash cases, the insurance company tries to shift blame to the victim, to reduce or deny recovery. Contributory negligence is one of the most common arguments. To return to the previous example, assume Paula made an illegal lane change, and Debra — who was speeding — rear-ended her. In cases like this, the juries must apportion fault on a percentage basis.

California is a pure comparative fault state that divides liability based solely on the percentage of fault. Assume the damages were $100,000 and the jury splits fault 50-50. In California, Paula would receive $50,000. But if the same crash and same result occurred in Nevada, Paula would get nothing. That’s because the Silver State is a modified comparative fault state with a 51 percent bar. So, if the defendant’s liability is not at least 51 percent, the plaintiff is ineligible for recovery.

Third Party Liability in Crash Cases

Many states have dram shop laws that hold commercial alcohol providers liable for damages if their intoxicated patrons later injure someone. But Nevada has never had a dram shop law and California legislators recently did away with the Golden State’s version of that law.

Other third party liability theories may apply, such as respondeat superior (“let the master answer”). In a nutshell, if the tortfeasor (negligent driver) was an employee acting within the course and scope of employment at the time of the crash, the employer is at least partially responsible for the victim’s damages. All the relevant terms are defined in broad and plaintiff-friendly terms.

Third party liability is often important because so many drivers are under-insured. Nevada has one of the lowest minimum auto insurance policy requirements in the country, and California’s requirements are not much higher. While it is relatively easy to collect damages from insurance companies, it is difficult, but not impossible, to collect from individuals.