A growing body of research supports the claim that talking on the phone while driving is dangerous, in large part because most people have difficulty dividing their attention between the cognitive demands of driving and those of a phone conversation. Simply put, talking on the phone uses some of the same brain space that driving does. However, in spite of knowing the dangers associated with cell phone use while driving, many drivers choose to use cell phones anyways. For example, in a 2011 poll by AT&T, 98 percent of drivers said that they understood the dangers of texting while driving but did it anyways.
Using a cell phone while driving can potentially be important under three different legal theories: negligence, contributory negligence and negligence per se.
Negligence, in the motor vehicle context, can be broadly defined as failing to take reasonable care while driving. A person who is injured in a car accident where the other driver was talking on their cell phone may be able to argue that, because of the dangers associated with cell phone use while driving, the other driver’s cell phone use is evidence of that he or she is guilty of negligence. An experienced Maryland personal injury attorney may be able to, through discovery or the deposition of witnesses, find evidence that the other driver was talking on their phone at the time of the accident.
If, on the other hand, it is the person in a car accident who is injured that was talking on the phone, the doctrine of contributory negligence is implicated. Maryland is one of only a few states that follows the doctrine of contributory negligence. Under contributory negligence, a person who brings a lawsuit, a plaintiff, cannot recover damages if he or she was at all negligent. This could mean that – even if the other driver was driving recklessly or negligently – a plaintiff who was talking on the phone while driving could be prevented from recovering damages.
Negligence per se is when the violation of a criminal law, such as a law prohibiting cell phone use, is introduced as evidence that a party was negligent in a civil case. In order to establish a claim for negligence per se, the harm that was suffered by the plaintiff must have been the type of harm that the statute was designed to protect from.
Cell Phone Laws in Maryland, Virginia, and Washington, D.C.
Maryland and the District of Columbia have both passed “cell phone laws.” Basically, these are laws that prohibit drivers from texting or talking on a handheld phone while driving. In Maryland, the new law went into effect on October 1, 2013, allowing police to stop any driver they see using a handheld wireless device while operating a motor vehicle. Virginia, on the other hand, allows talking on the phone while driving but prohibits emailing and texting.
In general, these laws are implemented to protect the drivers from the dangers of distracted driving. As such, there is a strong argument that violation of a cell phone statute is relevant to a civil claim of negligence. Although there is little Maryland law on point, a recent article published by the American Association for Justice offers an overview of how other states have treated the issue of cell phone laws and negligence per se. In several states with cell phone statutes, courts have ruled that evidence of violation of the statute is relevant and admissible. Even in states without cell phone statutes, courts have generally allowed evidence that a driver was talking on his or her cell phone in order to support a claim of negligence or defense of contributory negligence.
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