I Was Hit By Someone Who Was Texting While Driving

person holding red smartphone sitting in front of vehicle steering wheel

We have all seen it. You are driving along and see the car next to you with the driver looking at their phone and not paying attention to traffic.

Texting and driving, perhaps? They may weave from their lane of travel into yours. You may honk your horn and snap them out of their urgent Facebook viewing or texting. Many are not lucky enough to see in advance the carelessness going on in the car next to them or behind them. Instead, you find yourself in an accident when the other driver collides into the side of your car or, if you are unlucky enough, to be rear-ended at full speed by this person who does not care enough to put their phone away and watch the road.

Driving Requires You to be Vigilant

We have a law requiring people to keep a proper lookout and see what should be seen. While not codified by statute, case law establishes this duty upon all drivers who use our roadways. The duty to maintain a proper lookout requires that the operator of a motor vehicle is reasonably vigilant and that they anticipate the presence of others. Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E.2d 565 (1942).

Call it what you want; distracted driving, carelessness, reckless driving, inattention, or just plain dumb. To focus your attention away from the road and the safety of others, those who spend time looking at their Facebook are putting all of us at risk of injury.

It’s the Law in Most All States

In response to what we all witness every day, North Carolina passed a law in 2009 and modified it in 2012, making it unlawful to text or read email while driving §20-137.4A. It obviously has not worked. Violation of this statute is the equivalent of a speeding ticket, a class 2 misdemeanor punishable by fine, and up to 60 days in jail. Haven’t ever heard of a judge imposing a jail sentence for this behavior, but it is theoretically possible.

Of note, the very end of the statute says that a violation of the statute is not allowed to be used as evidence of negligence per se (as a matter of law).

In other words, the fact that the other driver had their nose and eyes focused on Facebook or whatever else was so important, can be used as some evidence of carelessness or negligence, but it is not automatic. Just something for a judge or jury to consider if your injury case must go to trial. As a practical matter, most jurors would frown upon hearing that the driver’s attention was diverted to their cell phone and away from traffic and likely conclude this to be negligence on their part. But, it is mind-boggling that it would still be a question.

Under 18 in North Carolina has Stricter Laws

North Carolina is a little more strict with young drivers. The legislature passed a law in 2006 and modified it in 2009, making it unlawful for those under the age of 18 to use a mobile phone while driving §20-137.3.

This is an infraction as opposed to a class 2 misdemeanor and carries a fine. The prohibition does apply to more conduct on the phone as opposed to §20-137.4A. To violate this statute, the young person cannot use the phone or “additional technology” while in motion for any purpose if they are driving. Section (b) provides: no person under 18 shall operate a motor vehicle on a public street or highway or public vehicular area while using a mobile telephone or any other technology associated with a mobile phone while the vehicle is in motion.

Violation of either provision does not establish negligence as a matter of law. Still, it would be considered evidence by a jury of negligent conduct under the other rules that apply to all drivers to keep a proper lookout.

If you have been injured by a distracted, inattentive, or otherwise careless cell phone user, then consider talking with the experienced attorneys at the Law Offices of Jason E. Taylor, P.C., to discuss your rights.

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