In 2013 Virginia passed legislation which imposed a fine on drivers who
text while driving. This legislation reflected the growing recognition
of the dangers posed by drivers distracted by their cell phone and aided
victims hit by drivers using their cell phone behind the wheel because
it bolstered their claim that the driver was negligent in using their
phone while driving. Attorneys at the Halperin Law Center have even successfully
collected damages from parents who gave their daughter the keys to the
car and then preceded to text with her as she drove.
A new report commissioned by the Governor’s Highway Safety Association
and funded by a State Farm grant now highlights the dangers of walking
while texting. However innocuous this activity may seem, research suggests
that as many as 1,500 pedestrians are injured while walking and using
their cell phones each year.
Since the seventies, the number of pedestrian fatalities has slowly fallen.
Since 2010, however, pedestrians make up an increasing share of fatalities
arising from motor vehicle accidents. Today one pedestrian is killed every
two hours and injured every eight minutes. Pedestrians using their cell
phone make up an increasing percentage of these fatalities. In other words,
not just is the number of pedestrians killed while using the cell phone
increasing, it is increasing faster than the number of pedestrians killed
who were not using their phone.
The report cites to various studies noting the prevalence of ‘distracted
pedestrians’ crossing busy intersections. One study noted that of
those who walked across an intersection with the right of way, 25% were
distracted, and of those who crossed when they did
not have the right of way, 50% were distracted. Other research has shown distracted
pedestrians do not walk in a straight line and do not swing their arms,
which reduces their balance.
The report also highlights government efforts to educate pedestrians about
these safety issues. California has specifically targeted pedestrians
using cell phones in a poster campaign using the tagline “Smart
Phone - Dumb Move - Eyes Up - Phone Down.”
What this could mean for you.
In Virginia, even though you may be crossing the road where you have the
right of way, a duty is still imposed upon you to use “ordinary
care” when doing so. Specifically, you have a duty to check for
traffic before stepping into the road. As early as 1928, in a case called
Meade v. Saunders, the Virginia Supreme Court held that if you stepped out into oncoming
traffic, you were negligent either because you failed to look, or because
you knowingly stepped out into it.
This is important because Virginia uses a doctrine called ‘contributory
negligence.’ This doctrine means that if your own negligence contributes
in any way to an injury you suffer, you cannot hold someone else liable
at all, no matter how much more they were at fault.
This study and the government efforts to deter cell phone use while walking
represent new weapons in a defense lawyer’s arsenal. We can expect
defense lawyers to argue that both this study and government efforts to
deter cell phone use while walking demonstrate that the duty of ordinary
care requires that you do not use your phone while walking. Defense lawyers
will argue that the reason you were hit by a car or were involved in a
slip and fall accident was because your smartphone distracted you. If
they can convince a jury of this, you will be unable to recover money
damages for the negligence of another person, no matter how much worse
their behavior was than yours. It is no accident that State Farm Insurance
produced the money for this study.
Attorneys at the Halperin Law Center stay up to date with the changing
legal landscape and have the experience and skill to push back against
the latest innovations of defense lawyers. We hope that you won’t
need us, but if you do, we are here to fight for the compensation you deserve.