We have all seen it here on Atlanta roadways. You are driving down the
road and there is a driver next to you that is talking on the phone or
texting. They are weaving in and out of their lane, slowing traffic, not
signaling if they are turning, and quite frankly they are oblivious to
what is happening around them. Suddenly, the
distracted driver swerves into your lane and causes a wreck. They put the phone away, get
out of the car and immediately deny that they were distracted. In fact,
they point the finger at you and say that you came out of your lane and
caused the wreck.
How do you defend against this? What can you do? In the absence of any
witnesses to establish what happened - and let's assume that you don't
have a dash cam that captured the whole event - this is going to be a
difficult case. When the police officer comes to the scene he has to determine
who is telling the truth and who is not. He could ask to see the other
driver's phone, but let's say that the guy was just reading a
text, how do you prove he was distracted? There is no evidence that he
was actually doing anything at the time of impact.
This is a common situation that even the best personal injury lawyers are
confronted with on a daily basis. The simple fact is that it is very difficult
to prove that the other driver was distracted at the time of the collision. A recent
Associated Press article by Joan Lowy confirms what we personal injury attorneys have known all
along - distracted driving is tough to prove! The article explains that
many distracted driving deaths are underreported because of the difficulty
in ascertaining the exact time of the crash, the difficulty in getting
the cell phone records of the wrongdoer, and the police's lack of
interest in investigating cell phone usage if there is another way the
wreck could be explained.
Because distracted driving is tough to prove, the statistics are being
underreported and people are all too quick to say that there is not a
problem with distracted driving. It is our belief - albeit anecdotal -
that a majority of accidents in Atlanta and throughout Georgia are caused
by distracted driving. We may not be able to prove it every time, but
it is certainly a major factor that in our practice as Personal Injury Lawyers.
As personal injury attorneys, we always want to understand how the wreck
occurred, but if the wreck can be explained by another factor such as
Following too Closely or Failure to Yield, that will give us enough liability
to pursue the claim without having to drill deeper in to whether or not
the other driver was distracted. Additionally, there is little incentive
to prove that the other driver was distracted as Georgia Law does not
currently allow for punitive damages against distracted drivers (although
we are hopeful that we can get this changed). For more information on
the law regarding distracted driving and punitive damages
see our recent blog post.
On a recent case that we successfully settled, it was essential to our
case that we prove that the other driver was distracted. In this case,
our client was driving on a narrow roadway preparing to make a left turn.
As our client was in the process of making his left turn, the other driver
passed him on the left and the two vehicles collided. The other driver
would not admit that she had done anything wrong and in fact denied that
she was using her cell phone at the time of the collision. With this as
the general facts, the insurance company for the other driver denied the claim.
Our client had contacted another attorney but the case was turned down
because the other attorney did not think that he could prove who was at
fault. We got involved in the case and filed a lawsuit. After obtaining
the cell phone records of the other driver we felt confident that we could
prove that she was on the phone, but we still had some doubts. We took
the deposition of the other driver and after going through painstaking
detail of the wreck and who she called, we were able to match this timeline
with her cell phone records to establish that she was on the phone when
the wreck occurred.
We presented our evidence to the other side and they quickly settled for
the limits of the liability policy. While this was a case in which we
were able to successfully prove that the other driver was distracted,
had she just been looking at her phone and not actually talking on it
at the time of the collision, this case could have turned out much differently
for our client.
Contact our firm if you would like to discuss a similar case with our competent lawyers.