Peace officers will begin enforcing two new roadway safety laws when the calendar turns to 2017.
About a year later, lawmakers finalized a stricter cell phone law. Current law only forbids talking and/or texting while driving, at least for most operators. The expanded law, sponsored by Assemblyman Bill Quirk (D-Hayward), makes it illegal to hold or use a cell phone while driving. In announcing the law’s passage, Mr. Quirk noted that distracted driving caused twelve fatal car crashes in California in 2014.
In September 2015, California Governor Jerry Brown signed a new car seat law. Doctors and safety advocates applauded the move, citing statistics that rear-facing car seats improve infant survival rates in car crashes by 75 percent. As early as 2012, these groups pressured lawmakers to change the current law. Some other voices, mostly from parents, were not as enthusiastic, predicting that voluntary compliance would plummet under the amended law.
When the existing Vehicle Code 23123 took effect in 2007, the iPhone was essentially an expensive and clumsy novelty. Supposedly, when Apple CEO Steve Jobs launched the product in January of that year, he had several different iPhones hidden under the podium, since because of a slow processor and low memory, the device could not switch between apps quickly and had limited capabilities. Today, there are over 2 billion smartphone users in the world, and that number is expected to eclipse 5 billion by 2019. Clearly, lawmakers felt that a change was warranted, especially after a Fresno appeals court ruled that driver could legally view apps, surf the web, stream video, post on social media, and do literally anything other than talk or text while behind the wheel.
The expanded cell phone law should make it easier for victims of distracted driving-related crashes to win maximum compensation, because of the negligence per se (negligence “as such”) doctrine. Instead of proving five elements (duty, breach, cause-in-fact, foreseeability, and damages), victims in negligence per se cases must only establish:
- Tortfeasor Violated a Safety Statute: The law says that non-penal infractions, such as cell phone violations, have the same effect as penal offenses, such as reckless driving. In both these instances, the negligent driver is liable as a matter of law, except as outlined below.
- Substantial Factor: Victims must show a clear connection between the statutory violation and the damages, although said violation need not be the sole factor in the car crash.
Tortfeasors can rebut the presumption of negligence only if they can prove that the violation was excused; for example, the tortfeasor had to change lanes illegally to avoid an obstacle in the road.
If something other than cell phone use distracted the driver, such as eating while driving, applying makeup while driving, or other such behavior, victims must pursue traditional negligence cases. There are categories of distraction:
- Visual (taking eyes off the road),
- Manual (taking a hand off the wheel) and
- Cognitive (thinking about something other than driving).
Hand-held cell phones are three-way distractions, so they are illegal to use while driving in many states. Hands-free cell phones still qualify as distracted driving, because these users take their minds off driving and take their eyes off the road.
Normally, victims do not have a duty to mitigate their damages before the crash, so the insurance company cannot argue that the victim was badly injured because he or she chose a lightweight, low-profile sports car instead of a sturdy, high-profile SUV. Largely because of judicial fiat, seat belts are an exception. However, for this duty to apply, the insurance company cannot simply cite safety statistics. Instead, to avoid or reduce liability, the insurance company must prove that:
- The vehicle had a working seat belt for that position in the passenger compartment,
- The victim had a duty to use the seat belt,
- The victim wasn’t wearing a seat belt, and
- Seat belt use would have diminished or eliminated injury.
This rule only applies to unrestrained adults, as there are no reported cases regarding failure to use a car seat, or failure to use the correct type of car seat. Also for this rule to apply, the insurance company must normally proffer expert testimony to establish the critical fourth element. The previous three can be difficult to prove, even though the standard of proof is only a preponderance of the evidence, and the insurance company has the burden of production and the burden of persuasion.
In all kinds of car crash cases, victims are entitled to compensation for their economic losses, such as medical bills, and their noneconomic losses, such as pain and suffering. Moreover, serious negligence per se cases essentially raise a presumption in favor of additional punitive damages, and the presumption becomes a conclusion if the victim proves that the tortfeasor consciously disregarded a known risk and thereby recklessly jeopardized the safety and/or property of others.
Car crashes cause serious injuries. For a free consultation with an experienced personal injury lawyer in San Diego, contact the Injury Trial Lawyers, APC. Attorneys can ensure ongoing medical treatment for victims, even if they have no money and no insurance.