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Laws evolve on phones and driving

Clifford's Notes, Chicago Lawyer January 6, 2014

By Robert A. Clifford

A new law takes effect Jan. 1 in Illinois – all cellphone use for drivers must be hands-free. Some communities in the state already banned the dangerous practice of hand-held cellphone use by drivers, but many had not. And Illinois state troopers often use spotters who alert other troopers of distracted drivers on the expressways.

Illinois becomes the 12th state to outlaw hand-held cellphone drivers and is the first state to do so in the Midwest. When signing the new law in August, Gov. Pat Quinn said as part of his continuing initiative to make the state’s roads safer that "distracted driving is not only dangerous – it’s deadly." Illinois already bans texting while driving.

A couple of years ago, a co-sponsor of the bill, Rep. John D’Amico, Secretary of State Jesse White and I stood on the stage of Regina Dominican High School in Wilmette and addressed a crowd of students on the dangers of texting and driving. The initiative was part of a project started by high school senior Karina Kedo, who is now a student at Northwestern University, called STATIC – Stop Texting and Talking in Cars. Together, we forged a program that put simulators in high schools across the state so that students could see the dangers of texting while driving.

A court in New Jersey expressed concerns about this in Kubert v. Best, 2013 WL 4512313 (N.J.Super.App.Div.Aug.27). The court held in a case of first impression that "the sender of a text message can be potentially found liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."

The case involved a couple who filed suit in 2009 against a teen who had been texting his girlfriend all day. According to cellphone records, he received a text from her just 25 seconds before his truck veered across the center line and struck a couple on a motorcycle. Each of them suffered severe injuries, and one of the riders lost a leg.

The couple settled against the driver for the maximum amount of his $500,000 insurance policy and the case proceeded against his girlfriend for her negligence in texting him while he was driving. The court found that "it is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text." The court examined whether the girlfriend was "electronically present" in that she "aided and abetted his unlawful use of his cellphone." The court also looked to see if there was a "special relationship" that gave the passenger control over the driver’s conduct such as employer-employee or parent-child. It could not find such a relationship here.

In examining the liability under a "full-duty analysis," the court held a limited duty arose on the part of the senders for the unlawful conduct of others, "but it will hold them liable for their own negligence when they have knowingly disregarded a foreseeable risk of serious injury to others." The court held that the plaintiffs had not presented sufficient evidence to prove that the girlfriend who sent the text knew the driver was driving and urged him to respond while driving. The well-written opinion narrowly defines a new duty on the part of those who are communicating with people known to be driving. In this case, the content of the messages was unknown; only the timing of the 100-plus messages sent between the two of them was discovered. First and foremost, the court recognized that it is "the primary responsibility of the driver to obey the law and to avoid distractions."

The decision is being hailed as ground-breaking, with the potential for more courts to follow this rule. Given the frightening statistics of our new technology, public awareness of this important issue will be raised. The U.S. Department of Transportation reported that drivers using hand-held devices are four times more likely to get in a crash involving injuries. Distracted driving caused 387,000 injuries and 3,000 fatalities in 2011, the DOT says.

In Illinois, cellphone and texting laws are "primary" laws, defined as offenses for which an officer can pull over a driver without having to witness some other violation. The initial fine in Illinois is $75, with fines as high as $150 for repeat offenses. The offender also could have the moving violation placed on his or her driving record. Three moving violations of any type within a year can lead to a driver’s license suspension.

Quinn also signed a law that hikes penalties for drivers who injure or kill others in crashes caused by the use of a cellphone or other electronic device. Starting Jan. 1, distracted drivers who harm others will face a Class A misdemeanor, which could result in fines up to $2,500 and up to a year of jail time. Drivers involved in fatal accidents could be charged with a Class 4 felony, which carries fines up to $25,000 and up to three years incarceration.

Importantly, these are safety precautions meant to save lives. Electronic signs on expressways in Illinois give the count of those killed on the highways. As I write this, the number totals 788. Let’s hope that in 2014 the number is much less.

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