Don't text, talk, and walk: the emerging smartphone defense in personal injury litigation.

• Author: Lang, Robert D.

Like it or not, many of us are both happily and hopelessly addicted to texting, tweeting, emailing, and speaking on handheld devices.

On the professional side, this permits lawyers, waiting in court to quietly but effectively communicate with colleagues, clients, and opposing counsel in other cases, without disturbing judges, court officers, and other lawyers also patiently waiting for their cases to be called. On the personal side, this allows everyone to communicate at any time with everyone about anything; whether announcing we will be a few minutes late for lunch, rescheduling an appointment, providing a picture of the tuna fish sandwich someone had for lunch and posted on Facebook for others to admire, or tweeting about the new episodes of "Arrested Development" or "Veronica Mars."

Just look around the next time you are stopped at a cross-walk waiting for the traffic signal to change: people, like you and I, with smartphones in our hands, staring at them intently, rapidly moving our thumbs, and texting. Those listening to music on iTunes or Spotify are easily distinguished, as their heads may bob in time to the music. Not so with those who text: a steady head and quick thumbs are the key to rapid texting. Just try having a serious conversation with someone who is walking and texting.

Whatever happened to the advice from our parents, "look both ways before crossing?" Today, people are looking down, not up or around. Many of us now reflexively, if not instinctively, repeatedly examine our handheld devices to make certain that nothing (critical or otherwise) has taken place in the five minutes since we last looked at our smartphones.

Consider Bobby Valentine who, in the final days of managing the Boston Red Sox, fell off a bicycle while riding near the Central Park Reservoir in Manhattan. (1) It was not a good year for Bobby V., who was reading a text on his phone from Red Sox All-Star second baseman Dustin Pedroia while riding a bike. (2) Valentine claimed that he looked up and, when he "swerve[d] to avoid the umbrellas of two French tourists walking in front of him," his bike skidded, causing him to lose his balance and careen to the bottom of a ditch. (3) It is unknown whether the unidentified French tourists were related to the marshmallow salesman who New York Yankees Manager Billy Martin famously alleged he punched out in a lobby, (4) but we do know that Bobby Valentine admitted to his error, stating "I shouldn't have been reading a text while I was riding.... That's the wrong thing to do. But at least I was wearing my helmet." (5) Leave it to Bobby V. to give new meaning to "spin."

Nearly half of all adults in the United States now own smartphones. (6) A wealth of scientific studies show that the human brain has difficulty focusing on more than one thing at a time, (7) but we stubbornly continue to multi-task and even believe that this shows that we are superior individuals, fully capable of handling several matters at once, because we all are so important and indispensible.

With the proliferation of texting technology, the number of people who regularly send and receive texts has exploded. "In December 2001, the monthly number of text messages sent in the United States was 252.8 million." (8) One decade later, by December 2011, "that monthly number nationwide had jumped to 193.1 billion according to CTIA--The Wireless Association, a Washington-based organization that represents the wireless industry." (9) A June 2013 study by Liberty Mutual Insurance found that 26% of pedestrians walk while texting or emailing, despite the 55% considering those behaviors to be dangerous. (10) Since drivers and pedestrians engage in dangerous activities, despite recognizing the risks involved, the logical conclusion is that many people are doing so because of a "it won't happen to me" attitude. (11)

Nor is it only teenage drivers who engage in texting while driving. A survey of teen drivers commissioned by AT&T conducted in April 2012, found that 41% of them had observed their parents texting while driving and 53% of them said they had seen their parents text while stopped at traffic lights. (12) Moreover, since some adults are newer to texting than their children, the new texters may be more engrossed in their new activity while walking, and therefore even less likely to notice their surroundings.

A 23% rise in traffic fatalities in New York City from July 2011 through June 2012, after years of decline, was found by then New York City Commissioner of Transportation, Janette Sadik-Khan, to have been caused in part by an increase in both distracted walking and distracted driving. (13) As stated by former Commissioner Sadik-Khan: "I don't think that the iPhone has invented an app yet that will ping you when you hit a crosswalk." (14)

Help may be on the way. A new app--CrashAlert--now in prototype, uses a distance-sensing camera to scan the path ahead and alert users when approaching obstacles. (15) The camera looks forward while the user looks down. (16) Another new app, Sidewalk Buddy, creates a video pop-up window, which appears on top of any other app that people are using to show a heads-up, real-time feed of what is in front of you, from the phones rear-facing camera. (17)

Former Commissioner Sadik-Khan added, "That breakup text can wait." (18) However, it is not only the dreaded breakup text which can cause such problems. Earlier last year, a British radio personality fell into an icy canal while walking and texting her boyfriend. (19) Her incident was caught on CCTV cameras in the shopping district and was publicized on the internet and in print. (20) The woman who fell, Laura Safe, tweeted after the incident, "I should really be called Laura UNsafe after the day I've had! LOL." (21)

One way New York City is dealing with the pedestrians texting while crossing streets is to paint, "LOOK!" signs inside the stripes of busy crosswalks, reducing the hazards, whether self-inflicted or otherwise, to pedestrians. (22) Of course, one has to be looking up from texting in order to see those warnings. The town of Fort Lee in New Jersey has approached the problem in a different way, "outlaw [ing] texting while jaywalking, [and] issuing ... tickets to pedestrians who send or read messages while drifting out of crosswalks." (23) The potential hazards from texting while crossing streets has given rise to recent suggestions that New York City ban the activity altogether. (24)

Satirizing the problems of walking and texting, earlier last year in New York City, the prank collectives, Improv Everywhere and BuzzFeed, joined forces by having sixty participants walk the streets of Manhattan, divided into two groups. (25) Half of the group posed as "Seeing Eye People," wearing orange vests stating, "I Can Help You Walk and Text," and the other half were individuals texting and walking, physically connected to the Seeing Eye People on leashes. (26) "The Seeing Eye People claimed to be part of a

Department of Transportation Pilot Program." (27) Later that same day, a second version of the project was staged where the Seeing Eye People approached "real people" texting and walking on the street, offering their services to guide them safely through Manhattan. (28)

On April Fool's Day in 2012, Philadelphia taped off "e-lanes" on sidewalks, to be used by pedestrians using mobile devices in response. (29) Many people used the "e-lanes" even to the extent of separating themselves from friends and family to stay between the lines. (30)

Nor are the problems of texting and walking restricted to urban settings. As reported last July by the Chief of Emergency Medicine for Broward Health in Florida, in discussing injuries due to texting while walking: "People live outdoors in South Florida and that is a little bit more dangerous.... They almost always want to stay in touch with their Twitter and the Internet. They are almost addicted to it." (31)

In fact, the problems of texting and walking are worldwide. In June of last year, Japan Rail East began a seven-week campaign asking commuters to put away their smartphones while on train platforms. (32) The rail line launched a program, complete with 1,000 posters stating, "No mobile phones and games while walking," due to an increase in people falling off train platforms and bumping into each other at train stations while staring down at their smartphones. (33) The Japanese National Transportation Ministry reported at least eighteen people fell from train station platforms in 2011 while using cell phones and a recent study by Tsukuba University in Japan, found that over 60% of 650 students surveyed in 2013 had either run into someone or almost had bumped into another person while using a cell phone, with 4% of the students suffering injuries as a result. (34)

Although there are bans on handheld phones or texting while driving in nearly every state, (35) the scientific evidence points to the conclusion that it is the act of being engaged in a conversation on a mobile device, rather than holding that device in one's hand, which is the primary source of distraction, and therefore of potential injury. (36) Studies show that people recognize the risks of talking on handheld phones and texting, more than they perceive the risks of hands-free phones, due to distractions. (37) A recent study by Ohio State University compared the number of injuries suffered by walking and texting pedestrians in emergency rooms nationwide from 2004 to 2010 and showed an increase each year with an overall increase of almost 140% over that six year period, with two-thirds...