Can I Seek Punitive Damages for Distracted Driving?

It is typical stop and go, rush hour traffic in Atlanta. You are driving on I-85 and you notice that the person behind you is talking on his cell phone. You don’t think much of it, because it seems that everyone in Atlanta is talking on their cell phones while driving . Traffic comes to a stop in front of you. You stop in time. The driver behind you does not. Police respond to the scene, you are whisked away in an ambulance and taken to the hospital. Thus, begins a long and painful road to recovery. You know that the other driver should be responsible for your car, your medical bills, your lost wages, your pain, your suffering, your inconvenience, but are they responsible for anything else? Can you make a claim for punitive damages when the other driver was talking on the cell phone?

Right now, under Georgia law, the answer is NO!

Despite the fact that lawmakers and safety experts around the country are aware of all of the dangers associated with distracted driving. Despite the fact that there are overwhelming statistics showing that distracted driving is as dangerous as drinking and driving. Despite the fact that in 2011, 3,331 people died in wrecks involving a distracted driver, and an additional, 387,000 people were injured in crashes involving a distracted driver.


In Georgia, the proper use of a wireless communication device while driving does not constitute a violation of the duty to exercise due care while operating a motor vehicle. OCGA § 40–6–241. Subject to certain exceptions, reading, sending or writing text based communications while driving is now prohibited in Georgia, OCGA § 40–6–241(2), and drivers under age 18 are prohibited from all forms of wireless communication while driving, except in certain specified situations. OCGA § 40–6–241.1


“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51–12–5.1(b).


In a case involving the question of whether punitive damages could be awarded where the other driver was using his cell phone at the time of the incident, the Georgia Court of Appeals held that simply using a cell phone was not enough to allow for punitive damages. To put it simply, you have to have something more than just talking on the cell phone or texting. You have to show a pattern of dangerous driving.

The court went on to state that they were not closing the door on punitive damages for talking on the cell phone when the wreck occurs, but did state that there must be a pattern. The problem is that it is extremely difficult, if not impossible to prove a pattern of dangerous driving in regards to distracted driving. As Atlanta I njury Attorneys , we understand that far too many lives are ruined by car wrecks on Georgia roadways as a result of distracted driving.

We are hopeful that we can decrease the number of distracted driving accidents as more people become aware of the dangers that it presents. Through education, new laws, and better enforcement of the existing laws we hope to that the epidemic of distracted driving comes to an end.

If you or someone you know has been injured please do not hesitate to call our Atlanta personal injury law firm to schedule your free consultation .