Distracted drivers, or drivers using their cell phones while operating a vehicle, are now the number 1 cause of accidents in Georgia. This statistic can be surprising since most people presume speeding or driving under the influence would be more common. However, this statistic is not that far-fetched when considering how integral cell phones have become in our everyday lives.
Consequently, many states have passed “hands free” laws to curtail the use of cell phones while operating a vehicle. Georgia’s “Hands Free Law” went into effect on July 1, 2018, O.C.G.A. 40-6-241(c), originally known as House Bill 673. In short, this law makes it unlawful to have a cell phone in your hand at any time while operating your vehicle. Violating this law can result in points going onto your driving record.
So what happens if you are involved in an accident involving a distracted driver?
First and foremost, the burden falls on you, the injured party, to prove that the other driver was distracted thus causing the accident. The easiest way to do this occurs when the at-fault driver admits to using his/her cellphone at the time of the collision. However, most people will not make such an admission, and therefore, you must take more creative approaches to prove that the at-fault driver was using his/her cell phone at the time of the collision. Such creative approaches include locating and interviewing possible independent eye witnesses or investigating the at-fault driver’s social media pages to see if he/she made any posts at or near the time of the collision.
If these options do not provide us with any strong evidence, then we can still request the at-fault driver’s cell phone records. However, in order to make such a request would require filing a lawsuit and requesting them through proper discovery channels such as requesting them from the opposing attorney or subpoenaing the records directly from the cell phone provider. Likewise, when filing a lawsuit, we can also request the at-fault driver’s social media pages to again investigate for any posts made at or near the time of the accident. The important point to remember here, is that you almost never gain access to these documents unless you file a lawsuit.
This is important because far too often injured drivers rightfully claim that the other driver was holding his/her cell phone at the time of the collision, and they request that we pull the other driver’s cell phone records to prove it. However, without the order from a judge, we do not have access to those records, and we cannot get the order from a judge unless we have filed a lawsuit. Thus, we can’t understate the significance of reaching out to an accident attorney as soon as possible, so that the attorney can properly investigate your claim before evidence goes stale or disappears.
Another significant component of accidents involving the use of a cell phone is the possible recovery of punitive damages under O.C.G.A. 51-12-5.1(b). As discussed in our Drunk Driving post, punitive damages are an award that goes beyond just the recovery for past medical bills and pain and suffering. Punitive Damages is a monetary award in order to deter future similar behavior from the at-fault driver. Georgia Law does not have a cap on the amount of monetary award that a jury can award an injured victim.
A few years prior to when the Georgia Congress passed HB673, the courts addressed the issue of punitive damages in car accidents involving cell phones. See Lindsey v. Clinch County Glass, Inc., 312 Ga. App. 534 (2012). Here, the Georgia Appellate Court ruled that these types of accidents did not rise to the same level of neglect, and therefore disallowed the recovery of punitive damages under O.C.G.A. 51-12-5.1(b). The court noted in its decision that an injured party could not recover under such an accident, unless he/she could prove a past history or pattern of cell phone use/distracted driving in the at-fault driver’s behavior. In turn, such neglect could in fact further expose the defendant, and therefore, allow for an argument of such a recovery.
With the passing of HB673, the question(s) now exists of whether the courts will keep with its ruling in the Lindsey case, or whether they will allow for the recovery of punitive damages in accidents involving drivers distracted by their cell phones. Thus, it is important to hire an attorney experienced in auto accident claims and up-to-date in all the recent court rulings.
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