What to do if you're involved in an accident with a distracted driver
What drives you to distraction?
Hopefully, nothing—if you’re actually driving. In Massachusetts, distracted driving isn’t only discouraged—it’s against the law.
But distractions happen anyway, resulting in serious car accidents.
So, what does distracted driving mean, exactly?
What is distracted driving?
The National Highway Traffic Safety Administration (NHTSA) says distracted driving is:
“Any activity that diverts attention from driving, including talking or texting on your phone, eating and drinking, talking to people in your vehicle, fiddling with the stereo, entertainment or navigation system — anything that takes your attention away from the task of safe driving.”
Put simply, distracted driving is anything that:
- Takes your hands off the wheel (manual)
- Takes your eyes off the road (visual)
- Takes your mind off the task of driving (cognitive)
While this can include a variety of distractions—including personal grooming or applying makeup, shaving, eating, viewing a map or directions, handing something to a backseat passenger, or even being distracted by something happening outside your car—texting is by far the most dangerous cause of distracted driving because it involves all 3 types of distractions (manual, visual and cognitive).
The NHTSA says sending or reading a text takes your eyes off the road for about 5 seconds. If you’re driving 55 miles per hour, it’s as though you’ve driven the length of a football field with your eyes closed.
There is no safe way to drive if you’re distracted.
These numbers are likely lower than the reality because these are only the cases where distracted driving was reported. It doesn’t include all the crashes when a driver was distracted but it isn’t determined to be the cause.
Massachusetts Hands-Free While Driving Law
The Massachusetts Hands-Free While Driving Law went into effect in February 2020. The law prohibits a driver from using any electronic device unless it is in hands-free operation mode.
In more detail, this means a driver:
✔ Only touch their device in order to activate hands-free mode
✔ Only enable hands-free mode when the device is installed or mounted to the windshield, dashboard, or center console in a way that doesn’t impede operating the vehicle
✔ Activate GPS if the device is installed or mounted
✔ Use the device hand-held if the vehicle is stopped and not located in a travel or bicycle lane
✔ Use voice-to-text or other communication to the device if the device is mounted correctly
✔ Use one earbud or one side of a headset
✘ Hold or support an electronic device while behind the wheel
✘ Touch the device to text, email, use apps or video, or for internet use
✘ Use the device at a red light or stop sign
✘ Use any electronic device, even in hands-free mode, if the driver is under 18
The only exception to the hands-free law is when a driver must use their cell phone to call 911 to report an emergency. A driver should pull over and stop before calling 911 if possible.
Penalties for violating Massachusetts hands-free law
1st offense: $100 fine
2nd offense: $250 fine and mandatory distracted driving education program
3rd or subsequent offense: $500 fine, insurance surcharge, mandatory distracted driving education program
It might not be illegal to eat, drink non-alcoholic beverages, change radio channels, look at a paper map, or engage in other behaviors that are distractions, but it’s still dangerous. For that reason alone, you should avoid distracted driving.
Think of its impact on yourself, but also on anyone else around you while you’re on the road.
Liability for a distracted driving accident
A personal injury claim is based on determining if someone was negligent (and, if so, who). A person is negligent if their behavior caused injury to someone else through action or inaction that could reasonably be anticipated to cause harm.
If you were in a car accident and you believe it was caused by a driver who was texting, for instance, you’ll need to prove it to the courts in order to have a successful lawsuit. But there are a few nuances — it’s not really that straightforward.
For one thing, Massachusetts is an at-fault insurance state, which means you make an initial claim against your own insurance to cover costs for an accident, regardless of who was at fault. But if your expenses are more than your insurance policy limits, more than $2,000, or fall into a few other exceptions, you can file a personal injury lawsuit.
If you need to file a personal injury lawsuit, the key to success will be proving that the other driver caused the accident. Proving that they were texting (or otherwise distracted) can help you make your case.
Massachusetts follows a comparative negligence standard of law. If you have to file a lawsuit (for any personal injury in Massachusetts), you can recover for your injuries only if you’re less than 51% at fault. If you’re 50% or less at fault, the amount of your damages would be reduced by your percentage of fault.
How distracted driving impacts liability
If the accident investigation shows that the other driver was clearly at fault (for example, they didn’t stop at a stop sign, drove on the wrong side of the road, made an unsafe lane change, etc.), then does it matter if they were texting?
Yes, it matters.
Some accidents are the result of poor judgment, sometimes made in an instant. Or, they could be the result of poor visibility because of weather conditions, or some other factor beyond the driver’s control. While the driver who caused the accident is still at fault, the court might apportion the percentage of fault differently if they’re doing something more intentional — which texting definitely is.
Therefore, proving that another driver was texting could have a tremendous impact on your lawsuit. Here are a few ways your lawyer might seek to prove that the other driver was distracted at the time of a crash:
- The driver admitted they were texting. This is unlikely but possible. Sometimes, in the moment, a person will make what the law calls an “excited utterance,” which is a comment that they say without really thinking about it. So, perhaps the driver is so startled by the accident that they jump out of their car and say, “I’m so sorry! I was just checking a text and I didn’t see you!”
- Witness statement. You might have a witness who can testify to having observed the defendant texting (or otherwise distracted) when the accident happened. Perhaps it was another motorist who saw them, a pedestrian, or even one of their own passengers.Along those same lines, if the accident happens in an area where there are surveillance cameras (for example, a shopping center parking lot), there might be video footage that could show what the driver was doing at the time of the crash.
- Phone records. Your lawyer could subpoena a driver’s phone records to provide evidence of your claim. The phone company will have a log that includes the exact times that calls and texts were sent or received. An officer at the scene could also confiscate the driver’s phone if they believe it was the cause of the accident, and the phone might provide clues through other apps and functions about what the driver was doing at the time of the crash.
Linehan was accused of texting while driving, but she claimed that’s not what happened. She said she’d suffered a medical event and glanced down at her lap for a moment when the collision happened.
However, evidence from Linehan’s cell phone showed that she began sending text messages at 2:03 pm. She received a text at 2:07 pm, and then called 911 to report the crash at 2:11 pm. She was later charged with motor vehicle homicide by negligent operation, using an electronic device while operating a motor vehicle, and a marked lanes violation.
While Linehan must face her criminal charges, it’s also likely that the Norris family will file a civil wrongful death lawsuit against her.
Regardless of how the various legal proceedings work out, no one wins in this situation. Linehan faces strict consequences for her actions and the Norris family has tragically lost a loved one.
Employer liability for an employee’s distracted driving
An employer may be held legally liable for negligent acts of an employee or contractor if the person was acting within the scope of their employment at the time of the accident.
This doesn’t mean that because a worker was “on the clock” for their job when the accident happened, the employer is necessarily liable.
Although the driver was at work when she caused the collision, her employer would likely defend itself from a lawsuit by saying that she was sending a personal text that wasn’t work-related.
However, if she was texting the person she was scheduled to meet at the next worksite, that would be within the scope of her work and liability might be handled differently.
Clearly, these are complicated issues that lawyers will need to work out, either through negotiation or for the court to decide. It’s important for an employer whose workers are driving during the course of their employment to review state distracted driving laws (and all laws) and train employees accordingly.
Don’t be a distracted driver!
Here are 10 tips for remaining focused when you drive:
1. Never hold your phone in your hand.
If you need to use it for GPS, mount it to the dashboard so you can see the map without taking your eyes off the road. Turn off other notifications so that you’re not seeing other banners or pop-up notifications on the map while driving.
2. Silence your phone before you get in the car.
Those rings and pings can be a distraction even if you’re not looking at the phone. Especially if you’re the type of person who would be in suspense over who texted you and what they said, the distraction could be in just knowing that there’s a message waiting for you. If you can’t resist looking at your phone when it buzzes, keep it somewhere you can’t get to it like in the back seat or trunk — that way you’re not tempted to sneak a peek.
There are apps that notify you of all kinds of things... not just texts. But don’t use them while you drive... and that includes recording video.
4. Keep your music at a low volume.
It’s important to hear sounds from outside the car to alert you of danger, so keep your music or other listening material at a reasonable volume.
5. Don’t text or call someone if you think they’re driving.
This is how you can protect your friends and others. Don’t put someone else in a potentially dangerous situation.
6. Don’t eat or drink while driving.
Most of us can eat or drink with our eyes closed (but we don’t recommend it). But reaching for a cup in the holder, glancing down because something fell on your clothes, or even taking a big bite of a sandwich can take your eyes off the road and hands off the wheel momentarily—which is all it takes.
7. Prepare listening material before you leave.
If you like to listen to music or podcasts from your phone, queue your selections before you start driving so you don’t have to do so while on the road. By the same token, set addresses in the GPS so you don’t have to attempt to use the navigation while in motion.
8. Don’t let your passengers be a distraction.
Any parent knows how distracting children can be. But this also includes pets — keep them in a carrier or buckle them in the back seat if they can sit there calmly.
9. No reaching.
If you drop something on the floor of the car, either leave it there until you’ve reached your destination or pull over to retrieve it.
10. Don’t take videos.
Regardless of what’s happening outside the car, don’t use your phone to take pictures or videos while driving. If you feel like recording traffic is useful, purchase a separate dashcam that can record without driver intervention.
Types of distracted driving accident damages
In a personal injury claim, the plaintiff is often awarded compensatory damages. Compensatory damages are intended to restore you (the plaintiff) to the condition you’d be in if the accident had never happened.
You can recover these compensatory damages after a Massachusetts car accident:
- Costs for medical treatment, both current and future
- Lost wages and earning capacity, current and future
- Ongoing therapies and adaptive devices
- Assistance with costs of daily living (housekeeping, home aides, etc. if you’re disabled as a result of the accident)
- Property loss (cost of vehicle repair or replacement)
- Pain and suffering and other emotional distress
- Other expenses related to the accident
Call a Massachusetts car accident lawyer
Any car accident has the potential to result in a complicated lawsuit or complicated insurance negotiations. “Complicated” isn’t always a bad thing — it just means that there are work and skill involved in getting the compensation you need and deserve.
Fortunately, you don’t have to handle your case on your own.