Distracted Driving Accident Claims

Involving Mobile Devices Special Considerations and New Frontiers in Legal Liability

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

WEDNESDAY, AUGUST 1, 2012

Presenting a live 90-minute webinar with interactive Q&A

Douglas R. Horn, Lead Attorney, Horn Law, Independence, Mo.

Laurie Del Percio, Lead Litigation Attorney, Horn Law, Independence, Mo.

Distracted Driving: A New Universe of Risk Seminar Introduction & Objectives

Although distracted driving arises in many forms, this seminar will focus on distracted driving caused by a driver’s cell phone use.

This seminar is especially applicable for lawyers who handle a wide variety of

motor vehicle accident cases. Our primary objective is to give you tips and information that will enhance your case intake, preparation, and litigation approach in a distracted driving case.

Distracted Driving Definition Distracted driving is any driver activity, non-essential to driving a motor vehicle

that causes a visual, auditory, manual, or cognitive distraction such that it increases the risk of an accident.

Visual- looking at something other than the road Auditory- hearing something not related to driving Manual- manipulating something other than the steering wheel Cognitive- thinking about something other than driving

New Universe of Risk

In 2008, distracted driving was a rising problem due to texting teen drivers. Now, due to the proliferation of the smart phone, distracted driving has reached epidemic levels among every age segment.

Studies show that you are 4 times more likely to be involved in an accident when using your cell phone while driving. Texting while driving increases the chance of a collision by 23%.

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State Cell Phone and Texting Laws Handheld Cell Phones

As of July 2012, 10 states & DC prohibit all drivers from using handheld cell phones while driving. Except for Maryland, all laws are “primary enforcement”. Primary enforcement means an officer may cite a driver for using a handheld cell without any other traffic offense taking place.

All Cell Phone Use

No state bans all cell phone (handheld and hands-free) use for drivers, however, many prohibit all cell phone use by novice drivers.

Text Messaging

As of July 2012, 39 states & DC ban text messaging for all drivers. An additional 5 states prohibit text messaging by novice drivers.

Federal Cell Phone & Texting Laws Federal regulations prohibit interstate truck and bus drivers from using hand-held

cell phones while operating commercial vehicles. This Federal Motor Carrier Safety Act regulation, which became effective in January 2012, affects about 4 million truck and bus drivers.

Effects of Cell Phone Laws Recent state and federal cell phone laws have resulted in employers enacting

policies, procedures, and protocols that relate to the use of cell phones while driving on company business. It is not unusual to find employer rules more stringent than state laws.

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The Distracted Driving Landscape Attitudes & Behaviors The National Highway Traffic Safety Administration (NHTSA) recently

published “Distracted Driving Attitudes and Behaviors”. The Executive Summary of this comprehensive survey contains a number of interesting findings in the following areas:

• Common Distracted Driving Behaviors • Perceived Effect of Cell Phone Talk on Driving • Perceived Effect of Sending Text/E-Mail on Driving • Perception of Driver Safety • Crash Experience

Public Safety Awareness Efforts to increase distracted driving safety awareness have grown

considerably over the last several years. Because of these efforts, more drivers now recognize distracted driving as a “dangerous activity” that involves a substantial risk of harm.

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Profiling The Case Accident Scene Evidence, Crash Reports, and other Important Factors

• Gender • Age • Scope of Employment• Force of Impact • Time of Day (Hour/Minute) • Plaintiff Cell Phone Records • Driver/Passenger/Witness Statements

Preparing The Case

Accident Investigations, Evidence Preservation, and the Call Detail Record Possible Experts

• Accident Reconstruction • Animation Models • Cell Phone Forensic Experts

Posturing The Case

• Duty of Care • Aggravated Negligence • Trial Considerations

Notes: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

Pleading The Case The sample petition in the materials contains a cause of action for

recklessness. Written Discovery Requests Make sure you obtain an Authorization in order that you can request and

obtain the Call Detail Records(CDR). A sample CDR Authorization is included in the program exhibits.

Deposing The Defendant Driver The deposition of the defendant driver is one of the most important areas

for development of the distracted driving case.

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Distracted Driving on the Job A recent $21 million dollar judgment against Coca-Cola points out the significant

corporate exposure that can result from a distracted driving collision caused by a driver in the scope of employment.

• Initial Considerations

• Pleadings

• Written Discovery

• Deposition of Defendant Driver

• Deposition of Company Representatives Question/Answers/Clarifications Notes: _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________

SUMMARY OF U.S. STATE, DISTRICT & TERRITORY LAWS FOR DRIVING AND USE OF MOBILE DEVICES: STATE SUMMARY OF LAW Alabama Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law)

Ban on texting for all drivers (Primary law) effective 8/1/12 Note: Alabama defines novice drivers as those age 16 or 17 with an intermediate license less than 6 months

Alaska Ban on texting for all drivers (Primary law)

Arizona Ban on all cell phone use (handheld and hands-free) for school bus drivers (Primary law)

Arkansas Handheld ban for drivers age 18-20 years old (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Secondary law) Ban on texting for all drivers (Primary law) Note: Arkansas defines novice drivers as all drivers under the age of 18.

California Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Secondary law) Ban on texting for all drivers (Primary law) Note: California defines novice drivers as all drivers under the age of 18.

Colorado Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Colorado defines novice drivers as all drivers under the age of 18.

Connecticut Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Connecticut defines novice drivers as those under the age of 18 or with a learner's permit.

Delaware Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Delaware defines novice drivers as those with a learner's permit or intermediate license holders.

District of Columbia

Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary) Note: D.C. defines novice drivers as those with a learner's permit.

Florida Preemption Law prohibits localities from enacting distracted driving bans.

Georgia Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Georgia defines novice drivers as all drivers under the age of 18.

Guam Ban on texting for all drivers (Primary law)

Hawaii No current bans for distracted driving

Idaho Ban on texting for all drivers (Primary law) effective 7/1/12 Idaho has a "Distraction in/on Vehicle (List)" attribute as part of its Contributing Circumstances element, and officers are supposed to list the distractions in the narrative.

Illinois Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law)

Ban on texting for all drivers (Primary law) Illinois bans the use of cell phones while driving in a school zone or in a highway construction zone Note: Illinois defines novice drivers as all drivers under the age of 19.

Indiana Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Indiana defines novice drivers as all drivers under the age of 18.

Iowa Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Secondary) Note: Indiana defines novice drivers as all drivers with a restricted or intermediate license.

Kansas Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Kansas defines novice drivers as all drivers with a learner's permit or intermediate license.

Kentucky Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Preemption Law prohibits localities from enacting distracted driving bans Note: Kentucky defines novice drivers as all drivers under the age of 18.

Louisiana Handheld ban for drivers with a learner's permit or intermediate license regardless of age Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law for drivers under 18) Ban on texting for all drivers (Primary law) Preemption Law prohibits localities from enacting distracted driving bans Note: Louisiana defines novice drivers as those drivers within their 1st year of licensure

Maine Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers Maine has passed a law making it against the law to drive while distracted in the state Note: Maine defines novice drivers as all drivers under the age of 18.

Maryland Handheld ban for all drivers (Secondary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Secondary law) Ban on texting for all drivers (Primary law) Note: Maryland defines novice drivers as those under the age of 18 with a learner's permit or provisional license

Massachusetts Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Massachusetts defines novice drivers as those under the age of 18 with a learner's permit or provisional license

Michigan Ban on texting for all drivers (Primary law) In Michigan, teens with probationary licenses whose cell phone usage contributes to a traffic crash or ticket may not use a cell phone while driving

Minnesota Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Minnesota defines novice drivers as those under the age of 18 with a learner's permit or provisional license

Mississippi Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on texting for bus drivers (Primary law) Ban on texting for novice drivers (Primary law) Preemption Law prohibits localities from enacting distracted driving bans

Missouri Ban on texting for novice drivers (Primary law)

Note: Missouri defines novice drivers as drivers age 21 and under Montana No current bans for distracted driving

Nebraska Ban on all cell phone use (handheld and hands-free) for novice drivers (Secondary law) Ban on texting for all drivers (Secondary law) Note: Nebraska defines novice drivers as those under the age of 18 with a learner's permit or provisional license

Nevada Handheld ban for all drivers (Primary law) effective 1/1/12 Ban on texting for all drivers (Primary law) effective 1/1/12

New Hampshire

Ban on texting for all drivers (Primary law) To view the state legislature click here to be taken to another site.

New Jersey Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: New Jersey defines novice drivers as those under the age of 21 with a GDL or a provisional license.

New Mexico Handheld ban for drivers with in state vehicles Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for novice drivers (Primary law)

New York Handheld ban for all drivers (Primary law) Ban on texting for all drivers (Primary law)

North Carolina

Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: North Carolina defines novice drivers as all drivers under the age of 18.

North Dakota Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: North Dakota defines novice drivers as all drivers under the age of 18.

Ohio Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) effective 8/30/2012 Ban on texting for all drivers (Secondary law) effective 8/30/2012

Oklahoma Handheld ban for drivers with a learner's permit or intermediate license (Primary law) Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on texting for bus drivers (Primary law) Ban on texting for drivers with a learner's permit or intermediate license (Primary Law) Preemption Law prohibits localities from enacting distracted driving bans

Oregon Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Oregon defines novice drivers as all drivers under the age of 18.

Pennsylvania Ban on texting for all drivers (Primary law)

Rhode Island Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Rhode Island defines novice drivers as all drivers under the age of 18.

South-Carolina

South Carolina has a Distracted/Inattention attribute under Contributing Factors.

South Dakota No current distracted driving bans

Tennessee Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Tennessee defines novice drivers as all drivers with a learner's permit or intermediate license.

Texas Ban on all cell phone (handheld and Hands-free) for bus drivers (Primary law) Ban on all cell phone (handheld and Hands-free) for novice drivers (Primary law) Ban on texting for novice drivers (Primary law) Ban on texting for bus drivers (Primary law) Texas has banned the use of hand-held phones and texting in school zones Note: In Texas bus driver laws pertain to bus drivers with passengers age 17 and under. Novice drivers are defined as all drivers at the intermediate stage, first 12 months.

Utah Ban on texting for all drivers (Primary law) Utah's law defines careless driving as committing a moving violation (other than speeding) while distracted by use of a handheld cell phone or other activities not related to driving

Vermont Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Vermont defines novice drivers as all drivers under the age of 18.

Virgin Islands Handheld ban for all drivers (Primary law)

Virginia Ban on all cell phone use (handheld and hands-free) for bus drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Secondary law; Primary law for bus drivers) Note: Viriginia defines novice drivers as all drivers under the age of 18.

Washington Handheld ban for all drivers (Primary law) Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) Note: Washington defines novice drivers as those with a learner's permit or in the intermediate state.

West Virginia Handheld ban for all drivers (Secondary law until 7/1/13) effective 7/1/12 Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) Ban on texting for all drivers (Primary law) effective 7/1/12 Note: West Virginia defines novice drivers as all drivers with a learner's permit or intermediate license.

Wisconsin Ban on all cell phone use (handheld and hands-free) for novice drivers (Primary law) effective 11/1/12 Ban on texting for all drivers (Primary law)

Wyoming Ban on texting for all drivers (Primary law)

SOURCE: DISTRACTION.GOV at http://www.distraction.gov/content/get-the-facts/index.html Updated 7/26/12