Duhaime's LawMag

Jul 22

Written by: Lloyd Duhaime
Tuesday, July 22, 2008 11:08 AM

All drivers have a legal duty to keep a safe lookout at all times.

But hand held cell phones monopolize one of a driver’s hands, as well as the driver's cognitive ability to respond to anomalies, let alone emergencies. This blatant fact is acknowledged right in the manuals of most cell phones (such as that of LG's Chocolate, as pictured below).

The New England Journal of Medicine, according to drivenowchatlater.com, concluded that driving while talking on a cell phone:

“... is equivalent to driving (while) intoxicated”.

Another study in the UK:

"Driving performance under the influence of alcohol was significantly worse than normal driving, yet better than driving while using a phone."

Some idiots – reported by nationwide insurance in a 2 January 2007 study to be 19% of all cell phone driver/users -  text message while they drive!

When engaged in a hand-held cell phone conversation, a driver reacts more slowly when braking in an emergency, and are unable to sustain driving in a straight line, avoiding obstacles on the road or maintaining a safe distance from other vehicles, not to mention the significant inhibition of the field of vision.

Think of the risk to an inline skater or child cyclist.

All research shows that the use of cellular phones creates an extra risk.

A 2001 article of the Canadian Medical Association suggested that 15% of drivers have cell phones in their cars; that is quite likely much higher today.

More disconcerting, a survey done in Finland reveals that almost half of cell phone users that drive reported at least one incident of having increased their risk of a crash while using their cell phone; almost hitting another car in front or on the side, for example.

According to a Québec study, the chance of having an accident rises a whopping 38% when drivers are using a cell phone.

Cell phone operators simply don’t have the extra hand to use their turn signals, selfishly creating an extra hazard for other vehicles which rely on that information..

One American study concluded that:

“The risk of a collision when using a cellular telephone was four times higher than the risk when a cellular telephone was not being used”.

Hazard established ... what now?

Unfortunately in Canada and the United States, the use of cell phones by drivers is a matter of provincial or state jurisdiction. Up North, only Newfoundland and Quebec have banned anything but hand free devices while driving.

Finer words have rarely been found in statute that this salvo from Newfoundland:

"cellular phone" means an apparatus which can send and receive 2 way voice telecommunications without the aid of a wire or cord, except where that wire or cord is used as a power source, and excludes a 2 way radio device; and

"hand-held cellular phone" means a cellular phone the use of which requires being placed in proximity to the mouth and ear by being held in the hand or by another means that uses one or more parts of the body, but does not include a cellular phone that is equipped with and used with an external speaker or ear phone and microphone that may stand alone, be mounted in the vehicle, or worn on the body.

"A person shall not use a hand-held cellular phone while driving a motor vehicle on a highway.

"A person who uses a hand-held cellular phone contrary to subsection (2) is guilty of an offence."

The new section 439.1 of the Quebec Highway Safety Code is sweet and simple:

“No person may, while driving a road vehicle, use a hand-held device that includes a telephone function. For the purposes of this section, a driver who is holding a hand-held device that includes a telephone function is presumed to be using the device. This prohibition does not apply to drivers of emergency vehicles in the performance of their duties.”

New York State, California and Washington State (as of July 1), Brazil, Australia, Israel and Portugal have followed suit although some with laughable enforcement. In California, if caught, the offender faces a paltry $20 fine - hardly worth the cops' time!

As of July 22, 2008, a list of countries and an American states that ban cell phones while driving was available at cellular-news.com/car_bans/.

Why no ban everywhere?

One problem is the fallacy as expressed in a recent Stockton Record article on cell phone bans, as follows:

“A law, a good one, has to have two major components: It must enjoy public support, and it must be enforceable.”

That is false.

A good law has to be enforceable but while it is preferred, it does not have to “enjoy public support”.

In any event, one survey showed that 95% of the population feels that the use of cell phones by drivers is a problem and a clear majority said it should be a banned practice.

The real problem is a lack of political will.

In Canada, hush-puppy attorney generals like BC's Wally Oppal or Ontario’s Chris Bentley appear to react only to their own agenda or, worse, headlines, and aren’t interested in making the biggest difference they can.

Besides, many politicians are from hoity-toity segments of society where - harrumph! – “... it just would not do to take our toys away!”

Enter the lawyers, where, finally, Shakespeare’s “kill all the lawyers” quote rings hollow.

As with so many issues in society where trial lawyers take the lead through brave and courageous tort litigation, we are but a few major jury awards away from seeing significant action on this issue. A few dummy corporations - who do not ban cell phone use by their employees - will be bankrupt by a wise jury finding. Their insurers that will have to pick up the bill will make sure their clients listen.

It may even be a lawyer who plays both hero and villain.

On March 8, 2000, the fatal motor vehicle accident occurred and Yoon v Wagner was born:

“(A) Virginia lawsuit against Cooley Godward, the employer of the lawyer who ran over a 15-year-old girl, could help set a precedent in this fuzzy area. The lawyer, Jane Wagner, pleaded guilty to a felony and has already completed a one-year work-release program, according to her lawyer. Now the civil suit against the law firm is about to begin.”

“Following a jury trial, the Virginia court entered a judgment in favour of Appellants and against Wagner in the amount of $1,923,843.78 on a negligence-based count, and entered judgment in favor of Wagner on a count based on willful and wanton conduct. Appellants received $100,000 from Wagner’s liability insurance carrier after the judgment.”

Far too few companies implement cell phone bans. Just today, I was almost hit by a truck driver of a local waste disposal company “RDI”. The driver was driving backwards with a waste bin over a busy sidewalk, carelessly glancing for pedestrians while talking on a cell phone cradled under his right ear!

Don’t hold your breath waiting for a solid cutting-edge tort case out of Canada on this issue. Canadian judges that don’t adhere to the old boy’s grumblings are few and far between and the chances of one of them getting such a case is remote. Indeed, a July 22, 2008 search on Quicklaw for any relevant case on “cell phone liability” yielded nothing.

But the trained eye can feel the slight shaking of the ground in the USA that precedes one of these legal tsunamis, such as this from the Lakeland Ledger:

“Last December, International Paper Co. agreed to pay $5.2 million to a woman whose vehicle was rear-ended by one of its employees who was talking on a cell phone.

“The settlement was made even though the employee had violated a company policy requiring hands-free headsets to be used while driving.

“Exxon-Mobil and Shell Oil are among the large companies that ban employees' use of any type of cell phone while driving during working hours. Employers may be found negligent if they fail to impose a policy for the safe use of cell phones, the institute noted.

“Cell phone manufacturers might also be found liable if they fail to warn users of the dangers of driving while using cell phones.”

In 1999, a Pennsylvania investment firm paid a half-million US to settle a lawsuit launched after one of its employees, driving while conducting business on his cell phone, struck and killed a motorcyclist.

The real tragedy is that many people will be needlessly killed or maimed while we wait for the trial lawyers to raise the barn. While the politicians and bureacrats eat their sandwiches and pour coffee at their interminable meetings, each of us it at risk of avoidable and significant personal injury every time we embark upon the roads or sidewalks.

A strict ban on hand-held cell phones is overdue.

In the meantime:

• Write to your elected officials and demand that government workers adhere to a "no hand-held cell phone" policy while driving government vehicles.

• Contact city hall, local public transit and school bus companies, and see of they have a "no hand-held cell phone use" policy. If not, demand one.

• Don't use a taxi company that does not have a policy. Call them and tell the manager why you're switching.

• Anytime you see a corporate vehicle driving dangerously and the driver cradling a cell phone, call and report it to the company.

REFERENCES:

• A Hand-Held Cell Phone: Illegal!, publication of the Government of Quebec published at saaq.gouv.qc.ca/publications/prevention/handcell_illegal.pdf
• Burns, P., and others, How dangerous is driving with a mobile phone? Benchmarking the impairment to alcohol (London: Transport Research Foundation, 2002).
• Cell Calls And Crashes, Lakeland (Florida) Ledger newspaper, July 12, 2008, published at theledger.com/article/20080712/NEWS/807120363
• Danger Ahead! Cell Phones and Driving: Companies Limit Liability With Training Program, published at prweb.com/pingpr.php/VGhpci1UaGlyLUNvdXAtSGFsZi1FbXB0LVNpbmctWmVybw==
• Glater, J., Doing Business By Cellphone Creates New Liability Issues, The New York Times, published at lexisone.com/balancing/articles/n120102i.html
• Hang Up and Drive, Stockton Record, June 28, 2008, published at recordnet.com/apps/pbcs.dll/article?AID=/20080629/A_OPINION01/806290335/-1/A_OPINION
• Highway Safety Code, Revised Statutes of Quebec, Chapter 24.2, published at canlii.com/qc/laws/sta/c-24.2/index.html
• Yoon v Wagner, United States District Court, Central District Of Illinois, Urbana Division, action #05-2122

Copyright ©2008 Lloyd Duhaime

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