57 RI Bar J., No. 5, Pg. 17. Don't curse `em, sue `em!: Cell Phone Use While Driving as Evidence of Negligence.

• Author: B. Mitchell Simpson, III(fn1)Visiting Professor of Law, Roger Williams University School of Law

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 5, Pg. 17.

Don't curse `em, sue `em!: Cell Phone Use While Driving as Evidence of Negligence

Rhode Island Bar Journal57 RI Bar J., No. 5, Pg. 17March/April 2009 Don't curse `em, sue `em!: Cell Phone Use While Driving as Evidence of NegligenceB. Mitchell Simpson, III(fn1)Visiting Professor of Law, Roger Williams University School of Law You represent Friendly Insurance Company. Pursuant to his automobile policy, Jack Ferguson has subrogated to your client his rights against Sarah Oliphant for damages resulting from an automobile collision on August 10, 2007. At the time of the collision Ferguson was stopped on Turner Road in Middletown at the intersection with East Main Road when Oliphant, who was proceeding south on East Main Road, attempted to make a left hand turn on to Turner Road. She collided with Ferguson's automobile, a 2006 Mercedes Benz E320. Damage to the automobile exceeds $15,000. In addition, Ferguson was seriously injured and was out of work for three weeks. His total damages are in the $75,000 range. The matter has been assigned to the continuous jury trial calendar.

At the scene of the collision Ferguson stated to the police that while Oliphant was making her fatal left hand turn he could see her talking on a cell phone which she held in her right hand. Later she said as much to the insurance company's investigator. At first Oliphant denied using the cell phone at that time. But after the production of her cell phone records and in response to a request for admissions, she confessed that she was indeed talking on the cell phone when the collision occurred. But, she denied she was distracted from driving at that time.

You are now preparing for trial. Your theory is common law negligence. Causation and damages are not an issue. But, the issues of duty and breach of that duty present problems. In drafting jury instructions, a quick check of the Model Civil Jury Instructions for Rhode Island is not particularly helpful. The most pertinent instruction simply requires "an operator of a motor vehicle to keep a proper lookout."(fn2) Clearly, what constitutes failure to "keep a proper lookout" depends on the facts of each case.

"Lookout" has been described as "watchfulness" which a prudent and responsible person would exercise under the circumstances for his own safety and that of others.(fn3) The Rhode Island Supreme Court has described the concept of "lookout" in terms of duty. At an intersection a motorist has a duty both "of observing the traffic and general situation at or in the vicinity" and looking "in a careful and efficient manner in which a [person] of ordinary prudence in like circumstances would look. . .."(fn4) Thus, a jury may infer that if a defendant had been keeping a proper lookout, she would have seen the danger and could have taken action to avoid it.(fn5)

In this case, the most significant fact is Oliphant's use of a cell phone while making a left hand turn. According to your analysis this fact explains why she collided with Ferguson's car, thus satisfying the element of causation. You can certainly argue that by talking on her cell phone she was distracted and failed to keep a proper lookout. Oliphant's use of the cell phone is relevant and will be admissible at trial. But, you want to go a step further. You want the judge to instruct the jury along these lines: "If you find that the defendant, Sarah Oliphant, was using her cell phone at the time of the collision or immediately prior to it, then you may use this fact as evidence of her breach of her duty to keep a proper lookout."

Is a driver's use of a cell phone while driving evidence of negligence? So far the Rhode Island Supreme Court has not ruled on the use of cell phones while driving. Nevertheless, there is considerable law elsewhere on this and related points.

Before researching the law, the theory of your case and the relevant facts must be clear and kept in mind during preparation for trial. Your legal theory is founded on Oliphant's duty to maintain control of her vehicle and her failure to use reasonable care when operating it. The crux of your argument is that while using the cell phone she breached her duty to keep a proper lookout and that breach of duty was the proximate cause of the collision.(fn6) To make your case, you will have to satisfy the "but for" test, which means the jury must find "but for" Oliphant's use of the cell phone, she would not have operated the vehicle "in the manner that resulted in the plaintiff's injury."(fn7)

The best evidence of negligence is Oliphant's use of the cell phone when she crashed into Ferguson. You will have to convince the trial judge that her use of the cell phone is evidence of negligence and that the jury should consider it as such. The absence of Rhode Island case law on this point complicates the task of establishing common law negligence. The case law in other jurisdictions is not plentiful.

The advent of cell phones is a recent phenomenon. This reason explains the paucity of appellate cases involving the use of cell phones while driving motor vehicles.(fn8) However, three recent cases are instructive.

In the first case, the Illinois Appellate Court held that the trial court erred by excluding circumstantial evidence that the driver was using his cell phone immediately prior to the crash. The court held that the weight and value of the evidence should have been left to the jury. Also, the court found that the exclusion of that evidence "likely affected the jury's allocation of fault between the defendants."(fn9) If the defendant driver had been using his cell phone at the time of the crash, such use would tend to establish fault. In other words, there is an inference that use of a cell phone while driving is evidence of negligence.

In the second case, the Louisiana Appellate Court affirmed the trial court's finding that the driver was solely at fault because she was "talking on a cell phone and not looking down the traveling lane."(fn10) In both cases, two different courts concluded that talking on a cell phone distracted the driver and was evidence of negligence.

In Wilkerson v. The Kansas City Southern Railway,(fn11) the decedent was talking on her cell phone while she drove across a railroad crossing and failed to see the oncoming train. The court went beyond evidence of negligence and held ". . .the fault for this horrific tragedy lies with the inattentive driver who drove into the path of...