Author: Janet Thoman Green & Richard H. Adler

While many activities can distract a driver, the prevalence of cell phone use makes this activity the most common cause of driver-distraction related collisions.

According to the Cellular Telecommunications & Internet Association, approximately 224 million people now use cell phones, up from 4.3 million in 1990. Numerous studies have examined cell phone and driving safety. Aspects examined include:

1. driver distraction as the cause of collisions;
2. severity of injury when cell phones are implicated; and
3. differences in risk between hand-held and hands-free phones.

An April 2006 study found that nearly 80 percent of crashes involved some form of driver inattention within 3 seconds of the collision.¹ The study tracked the behavior of 241 drivers in 100 cars over a period of one year. The most common distraction found was the use of cell phones. However, a study in 2003 by AAA Foundation for Traffic Safety concluded that drivers were less distracted by cell phone use than by other distractions. The conclusions were based upon videotape analysis of driver behavior in two states. A 2005² study of drivers in Perth, Australia concluded that drivers are 4 times more likely to be involved in crashes serious enough to injure themselves.

The Australia study further concluded that the risk did not vary with the type of phone, whether hand-held or hands-free. Other studies have confirmed that the type of phone does not affect the risk. One study concluded that talking on a cell phone was as dangerous as driving drunk, even with a hands-free model.³ Hands-free users were found to have to redial 40 percent of the time, compared to 18 percent of those using a hand-held set.⁴

Responding to the issue, many states have enacted or considered legislation to restrict the use of cell phones while driving. By 2005, over two-thirds of the states had considered bills restricting cell phone use. Colorado, Delaware, Maryland and Tennessee banned the use of cell phones by young drivers in 2005. A recently enacted California bill will go into effect in July 2008 and will ban the use of hand-held phones while driving. The City of Chicago has such restriction currently in effect as of May 2006. New York has prohibited the use of hand-held cell phones while driving since 2001. New Jersey and the District of Columbia have had such restrictions since 2004. Connecticut banned the use of hand-held phone in 2005, but the law goes even further, allowing drivers to be fined for any distraction such as putting on makeup when they are pulled over for a traffic infraction. In Washington, the legislature has considered restricting the use of cell phones by young drivers and the public in general, but no such law is currently in effect.

The civil justice system has also responded to the issue. A driver who causes a motor vehicle collision through negligence is liable to the injured parties. The at-fault driver’s negligence may not depend upon the use of a cell phone, but such use may be evidence of negligence.

Recent court cases have resulted in liability of a driver’s employer when use of a cell phone by an employee results in a collision. Under the theory of “vicarious” or agency liability, an employer may be responsible for an employee’s acts that are committed in the course of employment. If, at the time of the crash, the employee was using a cell phone to conduct business on behalf of the employer, the employer may be liable. Employers may also be found negligent for failing to develop and implement a policy regarding the use of cell phones while driving.

Finally, a cell phone manufacturer could be held liable under a “product liability” legal theory known as “failure to warn.” The theory is that since cell phone manufacturers are aware of the risks and dangerousness of cell phone use while driving, then the manufacturer has a duty to warn the user of the danger.

When we have represented clients for trauma from a motor vehicle crash and the at fault driver was using a cell phone, there is often more serious physical injuries involved to our client. A cell phone user who is distracted often does not see the impending collision and does not brake. As a result, the acceleration-deceleration forces are greater and injury severity increased.

At Adler Giersch PS we understand the medical-legal-evidence aspects associated with trauma and stand ready to assist your patients when the need arises.

The 100-Car Naturalistic Driving Study, Virginia Tech Transportation Institute and the National Highway Traffic and Safety Administration, April 2006.

Insurance Institute for Highway Safety, July 2005

Human Factors, Human Factors and Ergonomic Society journal, Summer 2006.

National Highway Traffic Safety Administration, September 2004.