Distracted Driving: A Legal Solution?

The Florida Legislature Needs to Address Texting While Driving

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By Joshua Ferraro
Special to THELAW.TV

The Centers for Disease Control reports that distracted driving is a contributing factor in more than 386,000 injuries and more than 3,000 deaths every year. To put that into perspective, you could fill any NFL stadium more than five times with the number of people who are injured by distracted drivers every year. To put a finer point on it, in the last 10 years, this country has lost five times as many husbands and wives, sons and daughters to distracted driving than to the wars in Iraq and Afghanistan.

Unfortunately, despite the enormity of the loss created by distracted driving on a daily basis, the legislative response from both the federal and some state governments (such as here in Florida) has been fairly muted. The federal government has taken the most initiative by holding several summits, launching educational campaigns, and banning texting-while-driving for all interstate commercial drivers. It has also encouraged the states to prohibit texting while driving within their borders. However, while the federal government has taken action on his issue, it has refrained from using coercive tactics (such as threatening highway funds) to gain compliance from the states.

The Florida legislature has done even less to combat this problem and protect its citizens from the dangers of distracted driving. Every year from 2007-2012, the legislature rejected bills that would ban texting-while-driving throughout the state. In 2013, the legislature finally passed a law on the subject but it was a watered-down version of the bill supporters sought. SB 52 makes texting-while-driving a secondary offense, which means a driver can only be cited if he or she is pulled over for a different reason (speeding, swerving, etc). Even assuming police are able to enforce this law on a widespread basis, the fine for first offenses is a mere 30 dollars. In the end, these restrictions will likely be little deterrence to would-be distracted drivers and, therefore, it will have a minimal effect on the substantial number of injuries inflicted each day.

Fortunately, while lawmakers have failed to address this problem, Florida's trial lawyers have started proposing civil remedies that would compensate victims while preventing distracted driving in the future. Recently, courts in Palm Beach and Collier counties have held that punitive damages (those that punish the offender in addition to compensating the victim) are appropriate in distracted driving cases.

Using these decisions as a backdrop, the trial lawyer bar has begun pursuing distracted driving cases as a way to help individual clients, while also making a difference for the community at large. As these punitive damage awards become both routine and publicized, clients will be compensated for their injuries, while would-be distracted drivers are put on notice that their actions will have consequences. In the end, it is the knowledge of these consequences that will convince drivers to keep their focus on the road ahead.

Likewise, trial lawyers are starting to look at solving the problem from a systemic viewpoint by exploring liability on the part of auto manufacturers. Automakers have the ability to incorporate design features aimed at preventing distracted driving. However, as with seat belts and air bags, absent the threat of litigation, they will never do so. Therefore, with the lives and livelihoods of so many on the line, America's trial lawyers will push these corporations to utilize common sense safety features that will keep their customers (and drivers around them) safe.

The author, Joshua Ferraro, is an attorney at the West Palm Beach, Florida personal injury law firm of Lesser, Lesser, Landy & Smith.

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