Thomas Jefferson once said, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind…[A]s new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.”
Clearly, laws must change, and attorneys must keep pace with the changes.
As lawyers who handle car accident lawsuits in Western Washington, one of the largest changes we’ve seen in the last decade is a dramatic increase in accidents involving distracted drivers.
Imagine, just 20 years ago, cell phones were a rare luxury limited to the ultra-rich. Most individuals who owned one wouldn’t drive their own cars in the first place!
However, times have changed. In 2008, The Washington State Department of Licensing (DoL) estimates that 6,000 people were killed and 500,000 people injured in crashes involving a distracted driver.
Of distracted driving incidents, the most serious and deadly is texting while driving. The DoL argues that texting impairs a driver as much as a .16 blood alcohol level, or double the legal limit.
Potential clients often come to us after a car accident and ask if they can sue the other driver for texting right before or during the accident. Every case is different, but in general, if the other driver was texting, that can improve your ability to collect damages from their insurance company as the at-fault party.
Washington State Law
Washington State was the first state to officially ban texting while driving in 2007. Since then, 43 other states have passed similar bans.
Washington State’s law is RCW 46.61.668, which makes it a traffic violation to “send, read, or write a text message” while “operating a moving noncommercial motor vehicle.” The law makes exceptions for emergency vehicles, some GPS systems, and using a device to report illegal activity or summon medical help.
The fine for texting while driving is $124, but that fine may increase if the texting party caused an accident.
Despite the law, the University of Washington conducted a study that showed more than 8 percent of drivers on the road in Washington were distracted by handheld devices. Of those distracted drivers, almost half were texting while driving.
Do I have a Case?
This is a fast developing area of the law, and many of the crucial questions have not yet been answered by higher courts. To manage a case effectively, you will need a law firm with experience representing drivers injured due to other drivers’ negligence. Park Chenaur’s attorneys have more than 15 years of experience in this area. Please contact us for a free consultation.
That said, Washington’s very strong laws combined with general principles of personal injury law tell us that drivers who text are vulnerable to being placed at fault for an accident.
Ideally, in these cases, we can get the other driver’s insurance company to take responsibility and admit fault. This will substantially improve our ability to negotiate a settlement.
However – to do that we have to present evidence to the insurance company that their driver is at fault.
So how do we do that?
As noted above, texting while driving greatly increases the risk of an accident. One study estimated that texting increases crash risk by 23 times. This means that a texting driver intentionally (and illegally) increased the risk of a crash.
In legal terms, we can argue that the texting driver breached a general duty of care that all drivers are responsible for upholding while driving. We can then argue that breaching that duty makes the driver negligent, and responsible for the accident.
In other words, if we can prove that the other driver was texting, and that their texting contributed to or caused the accident, then the insurance company will be much more likely to accept liability.
However – proving that the other driver was texting, and that their texting contributed to the accident, is difficult.
There are a couple steps you should take following any accident to improve your chances later.
- Call the police: Always call the police after an accident. For one thing, if you weren’t at fault, a police report will help strengthen your case. If you are lucky, though, the police may cite the other driver for texting while driving. If they do not challenge the ticket, this will make it difficult for the other driver’s insurance company to reject liability. If you saw the other driver texting, let the responding officer know, and he or she may investigate.
- Photograph the scene: Take photos of both vehicles, as well as the surrounding area. This can be very helpful later if you can find evidence that the driver should have seen something, but did not. For instance, if the other driver blew through a stop sign, skid marks may indicate where the driver attempted to stop. This may help prove the driver was distracted, because they missed something a non-distracted driver would have seen.
- Flag down witnesses: If any witnesses saw the other driver texting, and are willing to testify, that will improve your ability to prove your claims.
- Tell your insurance company: Tell your insurance company if you suspect the other driver was texting. Your insurance company has an interest in proving that you were not at fault, and the more evidence you give them, the better.
- Do not talk to the other insurance company directly: Seek legal help before talking to the other driver’s insurance company. You are not paying them premiums and they do not have a duty to treat you fairly. They may attempt to get you to admit liability, or sign medical authorizations or other waivers. Always speak to an attorney before saying anything!
What Happens if We Win?
If we can prove that the other driver was at fault, we will attempt to negotiate a settlement that offers funds for the following:
- Emotional distress and/or pain and suffering
- Compensation for your medical bills, including physical therapy or other extended treatment
- Necessary repairs to your vehicle, up to and including a replacement for a totaled vehicle
- Compensation for diminished value if your vehicle is worth substantially less following the accident, even after it is repaired
Please contact us if you were injured in an accident by a distracted driver. We can provide a free consultation and determine whether you have a strong case. We can also work with the insurance company, and make sure you are treated fairly and receive the compensation you deserve.