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If you are the victim of a distracted driving accident, you could be entitled to recover compensation for your injuries
Job stress. Family stress. Pandemic stress. Some of us can become distracted when we’re not even doing anything—meaning, there’s nothing to be distracted from but we still feel distracted because our minds wander.
That’s normal. Particularly in today’s world, there’s a lot of stimulation coming at you all the time, from every angle. And while we can’t always prevent our minds from drifting, we all need to make sure to stay focused and reduce or eliminate distractions while we’re behind the wheel.
Wisconsin distracted driving statistics
The Wisconsin Department of Transportation reported that there were 29 distracted driving-related fatalities in 2020. That number was up 12% from 2019.
Nationwide, distracted driving results in about 3,000 deaths each year. It also causes approximately 280,000 injuries, according to the National Highway Traffic Safety Administration (NHTSA) The total number of accidents (including non-injury accidents, fatalities, and injuries) caused by distracted driving is about 920,000.
It’s important to note that these are documented distracted driving instances. There are lots of accidents that are likely the result of distracted driving but are not reported as such. This is because it’s hard to know if a driver was distracted. If the case is not contested in a way that would demand phone records or other evidence, it relies on eyewitness testimony or an admission by the driver. And, since distracted driving is not limited to mobile phone use, other distractions are nearly impossible to prove.
What is distracted driving?
Distracted driving includes 3 basic categories of distraction:
- Visual. Anything that takes your eyes off the road.
- Manual. Anything that takes your hands off the proper position on the wheel.
- Cognitive. Anything that takes your mind off the task of driving.
There are also auditory distractions such as sounds or noises that cause your attention to shift, and those could be either inside the car (like music, talking with a passenger, or a child crying in the back seat) or something outside. Some experts consider auditory distractions to be a cognitive distraction.
While texting or other electronics are some of the most common forms of distraction, there are lots of other ways you could become distracted while driving. Other distracting behaviors behind the wheel include:
- Eating or drinking
- Applying makeup / hairbrushing / shaving / personal grooming
- Reaching for items on the floor or back seat
- Speaking with a passenger
- Looking in the rearview mirror
- Watching something happening outside the car
Distraction means that your brain and visual processing are not working together. Therefore, you could see a hazard like a stopped car ahead and not be able to stop quickly enough to avoid an accident.
Wisconsin distracted driving laws
Texting while driving is against the law for all drivers in Wisconsin.
Wisconsin state law specifically prohibits:
- Inattentive driving (which generally includes any activity that interferes with your ability to drive safely)
- Cell phone use by a probationary license holder
- Hand-held phones by drivers in work zones
- Texting (for all drivers)
- Using a device for visual entertainment while driving.
The single exception to these rules is if you must make a call in an emergency while you are driving.
Penalties for distracted driving in Wisconsin
A texting offense can result in a fine of $20 to $400, and up to 4 points on your driver’s license. A violation of the general distracted driving law would be a fine of $173 and 4 points on your license.
Liability for a distracted driving accident injury
Let’s start at the beginning: negligence.
A person is negligent if they fail to take reasonable care to avoid causing injury to others. In the context of a car accident, each driver has a duty to every other road user — other drivers, pedestrians, bicyclists, etc.
When a person violates that duty by driving in a way that’s not reasonable — by, for example, speeding, failing to follow traffic signals, failing to pay attention, using poor judgment, or other things (like distracted driving) — they are negligent.
In other words, if you were injured in an accident and the other driver was at fault, you’re entitled to recover damages (costs) for your injuries.
Do you need to prove that a driver was distracted?
If it’s clear that the other driver caused the accident, it might not matter why for the purposes of a personal injury lawsuit.
If the person was texting, they might face traffic infraction tickets or fines, but that is unrelated to your lawsuit as an injured person.
For instance, if a person drives through a red light and hits you, they would be negligent for going through the light, regardless of what they were doing at the time. However, their level of distraction could become relevant if you’re seeking a high amount of damages for a severe injury or for a wrongful death because it could indicate gross negligence or recklessness. There’s also the possibility that you could recover punitive damages if the court finds that the defendant’s conduct was wanton, willful, or in reckless disregard for the plaintiff’s well-being.
However, Wisconsin laws require that if both parties bear some liability for an accident, the plaintiff’s damage amount can be reduced according to their percentage of fault (and a plaintiff can’t recover any damages if they are more than 50% liable for an accident).
Proving that the defendant was distracted can be important for establishing their percentage of fault for an accident, and it can have a profound impact on the amount of damages that the plaintiff can recover.
If you need to prove how an accident happened and you suspect that the driver was using their phone, your lawyer could demand their phone records in order to prove that the device was in use at the time of the crash.
However, other types of distraction would be harder to prove unless there are witnesses (which could include bystanders, passengers of either vehicle, or anyone else who observed the accident).
Damages for a distracted driving accident
For any car accident, you can recover damages that include:
- Medical treatment, including doctor or hospital visits, emergency services and/or ambulance transport, prescription medications, diagnostic testing, surgery, etc.
- Assistive devices, prosthetics, or ongoing therapies
- Lost wages, including future lost earning capacity
- Household functions (cleaning, cooking, childcare, etc.)
- Wrongful death, if you lost a family member in a fatal car or truck accident
Insurance policies do not cover mental anguish, pain and suffering, or other non-economic losses (that is, losses that don’t have a specific monetary value). If you believe you should be compensated for these things, you should speak with a personal injury lawyer about filing a lawsuit.
How do you collect damages after an accident?
Your first call following any accident should be 911 to notify law enforcement and request an ambulance if necessary. Next, you should report the accident to your own insurance company. Even if you’re not intending to use your own insurance policy for a claim, you need to report the accident.
You can do 1 of 3 things to recover compensation:
- File a claim directly with the other driver’s insurance company.
- File a claim through your own insurance company (which will pursue reimbursement from the at-fault driver’s insurance company).
- File a personal injury lawsuit.
A lawsuit is typically the last tactic to use for recovering damages. If you can’t negotiate a settlement that would cover the full amount of your damages, or if the insurance policies are not enough to cover your expenses, then you should consult with a Wisconsin car accident lawyer for advice.
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 getting in the car.
Those rings and pings can be a distraction even if you’re not looking at the phone. 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 pictures or 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.
When to contact a Wisconsin accident lawyer
If you’re involved in an accident and believe you’re entitled to a high-value settlement, if you have serious injuries or will require long-term or ongoing treatment, or if there are questions about liability, you should call a Wisconsin accident lawyer as soon as possible.
Enjuris’ Wisconsin law firm directory can connect you with a licensed attorney near you with experience and knowledge about all aspects of a distracted driving claim.
See our guide Choosing a personal injury attorney.