Last year the legislature of California passed a law prohibiting the use of cell phones during operation of a motor vehicle, unless using a hands-free device. While the law has had some success in reducing use of cell phones on our roadways, there still remains a significant and contingent of people who don't think an accident will not happen to them while using their cell phone.
In an embarrassing report today, Maria Shriver, wife of Governor Schwarzenegger, was caught photographically on three separate occasions using her cell phone while driving. Even after the governor advised reporters that he was going to take immediate action to resolve the issue, she was caught again on camera.
Cell phone use is still very dangerous on our highways and roadway surfaces. Articles are released daily about the tragedies arising from cell phone use while driving an automobile. A pedestrian was killed even though she made eye contact with the driver on a cell phone at Cal State Northridge, a pedestrian was also killed in Costa Mesa while the driver was texting, and I have written of other past cell phone related injuries and accidents.
Can the use of a cell phone give rise to a punitive damage claim in an injury producing auto accident? Yes says California personal injury attorney James Ballidis.
It is long been established that when a driver willfully and intentionally and with conscious disregard for the rights and safety of others, carries out an act that is dangerous or deadly, punitive damages can be assessed against that driver. Most notably are the claims of willful use of a car to ram or hurt someone, but drunk driving has given rise to punitive damage claims over the last 15 years. California requires proof by clear and convincing evidence that the driver knew or should have known they were impaired, but got behind the wheel anyway. There have been significant verdicts and settlements against drunk drivers.
It is not hard to realize that cell phone users are willfully using their cell phone despite the probability of injury or wrongful death, and they should be set subjected to punitive damages as well. Furthermore, intent is not necessary to prove punitive damages. If a cell phone driver knew or should have known that their conduct would likely result in injury or death, then they too can be subjected to punitive damages.
Virtually every driver would have to live in a cocoon to not know about the California statute prohibiting cell phone use. I have personally witnessed on at least eight or nine occasions other drivers becoming infuriated by slow drivers or distracted drivers who are obviously communicating on a cell phone, and a gesture or tell the driver's so. The havoc, damage and personal loss of life associated with cell phone use also has to be clear in the minds of virtually every driver in California. There has been so much written about the injuries and deaths caused by cell phone use that at the legislature was prompted to enact the California statute.
While drunk driving is vilified, making it easier to prove punitive damages, cell phone use, is moving quickly up the ladder of villainy, rising to the level of completely unacceptable behavior when driving a car in California. As a California auto accident attorney, our office will be reviewing each new case arising from an auto accident, and if cell phone use is implicated, punitive damages will be alleged.
Punitive damages are not discharge in bankruptcy, and are not paid for by insurance. If you value your hard-earned assets, house, car and retirement accounts, you should not do what the wife of the governor of California has elected do, you should shut off the cell phone or use a hands-free device while driving.
At least drunk drivers have the excuse that they have a disease, alcoholism. Cell phone need users do not. James Ballidis is a 25 year personal injury attorney practicing with Allen Flatt Ballidis & Leslie in Newport Beach California.
