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Does texting rise to the level of punitive damages in a truck accident injury or wrongful death lawsuit?

July 18, 2017 by Steven M. Gursten

Viable legal claims that injury attorneys can bring in a truck accident suit when texting and distracted driving are a cause of a truck wreck

Truck accident suit

Yesterday, I wrote about the latest updates in Michigan’s CDL Manual that now reflect the dangers of distracted driving. These same updates are being made in CDL Manuals across the country. I wrote yesterday that for the attorneys who litigate truck accident suits, we need to be investigating whether texting and driving or cell phone use played a role. (As an aside, I’ll be speaking on this topic in much greater detail Aug. 1, 2017, for a national legal webinar by Strafford on how injury attorneys can prove distracted driving in any truck wreck personal injury case that they are litigating.)

Today I’ll explain how attorneys can plead and prove distracted driving in a truck accident suit, and how distracted driving by a trucker who causes a wreck can lead to additional direct negligence claims against the trucking company and even punitive damage claims in those states that allow it.

Why is the company directly responsible and legally liable when a trucker is texting or driving distracted?

Most attorneys — even the ones that say they handle truck accident cases — don’t really understand trucking law. There are a small handful of lawyers who specialize in this area of law, which has its own unique rules and regulations. When I teach attorneys about trucking litigation, or speak at seminars on this topic, I remind them that trucking cases are very different from other types of motor vehicle accident cases. When it comes to distracted driving, the company that hired the trucker is obviously vicariously liable for the driver — hopefully every lawyer who practices personal injury knows that.

But an attorney who has a truck accident suit involving a trucker who is texting and driving or otherwise engaging in distracted driving can also plead legal counts of direct negligence against the trucking company itself.

These additional legal counts can be pled in a truck injury or wrongful death lawsuit include negligent entrustment, negligent supervision and negligent training. In those states that allow the claim, an attorney can even plead punitive damages.

Can distracted driving, such as texting when driving, lead to a punitive damages claim against the trucker and trucking company in a truck accident suit?

I also practice trucking accident law in other states, including states that have punitive damages. I have not yet seen a case reported nationally on this, but I have long felt and argued that using a cellphone or texting behind the wheel can lead to a successful claim for punitive damages (in those states that do allow this claim to be brought).

First, federal safety regulations are very clear that this is significant violation. The FMCSA specifically states: “No driver shall engage in texting while driving…” The regulations also state that: “No motor carrier shall allow or require its drivers to engage in texting while driving.” 49 CFR 392.80(a).

But why should texting rise to the level of punitive damages in a truck accident suit or wrongful death lawsuit?

Several reasons. First, the danger posed to the public by texting is most closely analogous to drunk driving. In fact, the likelihood of causing a truck wreck is 23.2 times greater for a commercial motor vehicle driver who is texting and driving than it is for a truck driver who is not.

There are other important statistics that are now even reflected in state CDL manuals that reflect how dangerous distracted driving is, such as research showing that talking on a cell phone — even if it’s hands-free — saps the brain of 39% of the energy it would ordinarily devote to safe driving. As the Michigan CDL Manual and the CDL manuals of many other states reflect, “Drivers who use a hand-held device are more likely to get into a crash serious enough to cause injury.” (MI CDL Manual, Part One, section 2.9.1)

Second, as I wrote above, the Federal Motor Carrier Safety Regulations specifically states that no driver shall text and drive or talk on a cellphone when driving.

Third, these mandatory safety rules fall squarely on the trucking company. These are the key federal regulations, as adopted by the states, that attorneys can use to plead and prove direct negligent claims and punitive damages against a trucking company that knowingly looked the other way with drivers who text and drive:

Whenever in Part 325 of Subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound. 49 C.F.R. § 390.11. The trucking company’s failure to require its employees to observe the FMCSRs is a violation of a duty imposed by the same regulations.

Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter which are applicable to that motor carrier’s operations. 49 C.F.R. § 390.3(e)(1).

Every driver and employee of the motor carrier shall be instructed regarding, and comply with, all applicable regulations contained in the rules. 49 C.F.R. § 390.3(e)(2).

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