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Here’s what to do if you’ve been injured by a distracted driver
Texting and driving isn’t just a “teenager problem.” It’s everyone’s problem.
As many of us rely more heavily on our mobile phones for all kinds of reasons — texting, calls, GPS, music, podcasts, banking, weather, reminders, and more — there’s a lot of temptation to sneak a peek at your phone when you should be focusing on something else... like driving.
Mobile device use is indisputably a huge hazard when you’re behind the wheel, but it’s not the only one.
Distracted driving is any action that meets one of these 3 criteria:
- Anything that takes your eyes off the road
- Anything that takes your hands off the wheel
- Anything that takes your mind’s focus off the task of driving
Distracted driving could include (but isn’t limited to) eating, adjusting dashboard controls like temperature or radio, reaching for an item on the passenger seat or floor, paying attention to a passenger in the back seat (or anywhere, if their behavior is distracting), personal grooming like shaving or applying makeup, reading directions, or using an electronic device.
Distracted driving statistics
The National Highway Traffic Safety Administration (NHTSA) reported that 3,166 people were killed by distracted drivers in 2017, the most recent year for which data is available.
- 9% of all traffic-related fatalities in 2017 were caused by distracted drivers.
- The 15- to 19-year-old age group has the highest proportion of distracted drivers in fatal crashes
- There were 599 pedestrians and bicyclists (i.e. non-occupants of cars) killed in distracted driving crashes in 2017.
Source: NHTSA Traffic Safety Facts
Do YOU text and drive?
According to a study by AT&T, 49% of commuters reported having texted while driving, along with 43% of teens.
98% of respondents said they know texting while driving isn’t safe (but they do it anyway). More than 40% of those who said they text and drive admitted that they consider it a habit.
AT&T research also indicates that nearly 4-in-10 smartphone users are engaged in social media while driving, nearly 3-in-10 are using the internet, and 1-in-10 are video chatting (for example, FaceTime or WhatsApp video). Although texting and emailing are the most common uses of mobile phones while driving, 7-in-10 people engage in other smartphone activity.
Cell phone laws in New York State
The New York Institute for Traffic Safety Management and Research (ISTMR) conducted significant research into New York phone-related crashes in recent years.
ISTMR defines a “cell phone crash” as one (or more) of the following:
- Hand-held mobile phone as a contributing factor
- Hands-free mobile phone as a contributing factor
- Texting reported
- If a driver was ticketed for violating New York portable electronic device laws
In 2018, there were 278 NY police-reported fatalities or personal injury crashes where cell phone use was a contributing factor. That figure represents an increase of nearly 18% from 2014.
There were 86,343 tickets issued in New York in 2018 for drivers talking on cell phones, and 111,250 tickets issued for texting while driving.
New York State mobile phone laws
New York State law prohibits a driver from using a hand-held mobile device (any phone or portable electronic device) while behind the wheel.
If you are driving, it’s illegal to hold a portable electronic device and:
- Talk on a handheld phone
- Compose, read, send, access, browse, transmit, save, or retrieve electronic data like email, text messages, or internet
- View, take, or transmit images (photo or video)
- Play games
You may only use your device while driving to call 911 or other emergency personnel.
If convicted of these offenses, you will have points added to your DMV driving record. Your license can be suspended if you receive 11 points within 18 months.
|Violation||Minimum fine||Maximum fine|
|Second offense within 18 months||$50||$250|
|Third or subsequent offense within 18 months||$50||$450|
There can also be surcharges up to $93 for any violation.
There are additional penalties for certain types of drivers:
- Probationary and junior drivers: First conviction results in driver’s license or permit suspension for 120 days. Second conviction within 6 months (after 120 day suspension) results in 1 year license revocation.
- Motor carriers and commercial drivers:
- a. A motor carrier is responsible for prohibiting its drivers from using cell phones or texting devices.
- b. If the driver of a commercial vehicle must press more than 1 button to dial or answer the phone, it’s not considered hands-free.
- c. A commercial driver may not make a call or text while temporarily stopped in traffic, at a traffic light, or while involved in any other short delay.
- d. A commercial driver who holds the phone in the proximity of their ear while driving (even while stopped) is presumed to be on a call.
- e. A commercial driver who holds the device conspicuously while the vehicle is temporarily stopped is presumed to be using the device.
How distraction affects your driving
You might think that you’re an excellent, alert driver who can sneak a peek at a text or send a quick one while behind the wheel and you’ll be fine.
If you’ve done this, you’ve been lucky. Most of us know that drunk driving is tremendously dangerous and we’d never do it. But studies show that texting and driving is just as dangerous as drunk driving.
Car and Driver performed a test of experienced drivers to see how reaction times were impacted by texting and driving as compared to drinking and driving.
To perform the test, the car was fitted with a light mounted on the windshield that would simulate a car’s brake lights. The drivers were instructed to hit the brakes when the light went on. The test took place on an open runway with no obstacles, and the drivers were using typical phones.
Take a look at their findings:
|Test||Driver #1 (age 22)||Driver #2 (age 37)|
|When driving 35 miles per hour|
|Baseline reaction time||0.45 seconds||0.57 seconds|
|Reading a text||0.57 seconds (extra 21 feet)||1.44 seconds|
|Writing a text||0.52 seconds (extra 16 feet)||1.36 seconds|
|Alcohol-impaired||0.46 seconds||0.64 seconds|
|When driving 70 miles per hour|
|Baseline reaction time||0.39 seconds||0.56 seconds|
|Reading a text||0.50 seconds (extra 30 feet)||0.91 seconds (extra 90 feet)|
|Writing a text||0.48 seconds (extra 31 feet)||0.68 seconds (extra 319 feet)|
|Alcohol-impaired||0.50 seconds (extra 15 feet)||0.60 seconds|
These results demonstrate that reading and writing texts slows reaction time just as much (if not more) than driving drunk.
Is that a risk you want to take?
And yet lots of people do. Although officials continue to promote distracted driving awareness campaigns, it continues to be a problem. The New York State Thruway has installed 12 text stops along the highway where drivers can safely pull over to use their phones, in addition to 27 service areas and 3 welcome centers.
What to do if you’ve been injured in a crash with a distracted driver
It’s hard to prove whether the driver of the other vehicle in a collision was distracted. If you pursue a personal injury lawsuit, your lawyer might be able to obtain records from the driver’s cell carrier that can show whether the phone was actively in use at the time of the crash. However, other distractions (eating, radio, etc.) are harder to prove because no one would know for sure if, for example, a driver was taking a big bite of a sandwich at the time they hit your car.
Initially, you’d treat it like any other car crash by making a claim to your own no-fault insurance policy. In New York, you’re required to have no-fault personal physical injury insurance.
Your first claim for compensation after an accident is to your no-fault policy, which means your insurance should pay regardless of who was at fault. However, this insurance might not cover the full extent of your claim if you have serious injuries.
You can file a claim against the at-fault driver if your injury meets certain requirements. These requirements are:
- Significant disfigurement
- Bone fracture
- Permanent limitation of use of a body organ or limb
- Significant limitation of use of a body function or system
- Substantially full disability for 90 days or longer
If your injuries meet one or more of these requirements, you can pursue a third-party insurance claim or a personal injury lawsuit.
No-fault insurance rules apply only with respect to personal physical injury (i.e. medical benefits) coverage. They don’t apply to pain and suffering or other non-financial damages or property damage.
Proving negligence in a distracted driving lawsuit
You want to be sure that you protect your right to recover full damages for your injuries if you were in a collision with a distracted driver. There are 2 important issues to act on as quickly as possible after an accident:
- If the driver was ticketed for distracted driving, they will probably try to plead the ticket to a lesser charge. You should notify the prosecutor that you were injured in the accident, because an injury (especially a serious one) will affect whether the prosecutor accepts a plea to a reduced charge. Once a plea agreement is reached, it’s too late.
- If the driver pleads guilty to any charges related to distracted driving, this is important evidence for your personal injury case. You should obtain any certificates of disposition related to the case.
A personal injury claim is based on establishing negligence. Negligence is when a person or entity has a duty of care to a plaintiff, and their action (or inaction) is a breach of duty that causes the plaintiff to be injured.
Every driver has a duty of care to anyone who shares the road — other drivers, pedestrians, or bicyclists. Collisions happen that are “true” accidents — for instance, all drivers were being careful, following the rules of the road, and driving safely, but maybe someone made a poor judgment or some other action that caused a crash.
But if a driver was negligent, the plaintiff deserves to receive compensation for their injuries. If a driver was distracted, your lawyer can make the argument that they were negligent per se.
Negligence per se is when the defendant acted in a way that violated a law or rule designed specifically to prevent the injury that happened. In other words, laws that make distracted driving illegal are specifically intended to prevent those kinds of accidents. If a person was driving distracted and caused an accident, that person is presumed liable because they were violating a law designed to prevent that from happening.
A negligence per se claim allows the plaintiff to shift focus away from liability and more on how much compensation they should be entitled to.
This is important because New York follows a comparative negligence system. Sometimes the plaintiff shares some degree of liability for the accident. If you’re awarded damages, the court would reduce the amount of damages you receive according to the amount of liability you have for the accident.
Look at it like this:
Calculating damages after a distracted driving accident
In many distracted driving cases, you can receive damages to cover the cost of your injuries from an accident. As mentioned above, your first claim is to your own personal injury protection (PIP) policy, which will cover injuries other than those that are very severe.
If the accident results in very serious injury or those not covered by PPI insurance, your insurance company can make a claim against the other driver’s insurance.
That claim can include:
- Medical treatment for severe or ongoing conditions related to the accident
- Personal property loss (your car, for example)
- Wages for time lost from work (past and future) because of the accident
If the settlement offered by the insurance company is lower than what you believe you deserve, or if the accident was severe enough that you require compensation for pain and suffering or emotional distress, you’ll need to pursue a personal injury lawsuit. The insurance company only covers physical injury treatment, lost wages, and property loss.
10 safe driving tips to avoid distracted driving
We’ve talked a lot about how you can be affected by someone else’s distracted driving, but there are also things you can do to make sure that you are not distracted behind the wheel:
- Never hold your phone in your hand. If you need to use it as your GPS, mount it to the dashboard so you can see the map without taking your eyes off the road. Turn off other notifications so you’re not seeing other banners or pop-up notifications on the map while you’re driving.
- Silence your phone before getting in the car.
- It’s not just about texting — don’t use any apps or social media while driving. If you need to send a text or look at something, pull over where it’s safe to do so.
- Don’t text or call someone if you know they’re likely to be driving.
- If you can’t resist looking at your phone when it buzzes, keep it somewhere you can’t get it, like in the back seat or trunk, so that you’re not tempted to sneak a peek. Some phones now have a Do Not Disturb While Driving function. If yours does, it can be a useful way to avoid being distracted.
- Don’t eat or drink while driving.
- If you listen to music or podcasts from your phone while driving, queue your selections before you go so you don’t have to touch your phone while behind the wheel.
- Don’t allow your passengers to be a distraction.
- 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.
- Regardless of what’s happening outside the car, don’t use your phone to take videos while driving. If you feel like recording traffic is useful, purchase a separate dash cam that can record without driver intervention.
When to call a personal injury lawyer after a distracted driving accident
Phone records can show whether a driver was actively using their phone, but that’s only one aspect to distracted driving. If they were looking for a song in their playlist, checking to see if a text arrived, or distracted in another way, there’s no way to prove it unless a witness saw them with a phone in hand.
And, remember that phones are only one type of distraction. If they were handing their child a snack in the back seat or adding sugar to their coffee when the accident happened, that’s going to be hard to prove.
An experienced car accident lawyer will investigate the accident to make the most effective arguments for you to receive the most compensation available. If you have very severe or ongoing medical issues, your lawyer will also consult with medical experts, actuaries, and financial professionals to get an accurate accounting of how much money you’ll need to cover your current and future expenses — not just the costs you already have paid or owe.
Enjuris offers a free lawyer directory you can use to find a New York personal injury lawyer who’s ready to take your distracted driving accident case.
See our guide Choosing a personal injury attorney.