Driver distraction is a major problem in Florida. Although texting-while-driving became illegal on state roads last year (making the Sunshine state one of the last to adopt such a measure), the law has little muscle as a secondary offense that garners only a $30 fine for the first infraction.
Meanwhile, the effects of texting or using social media or e-mailing while behind the wheel are stark, resulting in thousands of fatal crashes across the country each year.
Although there are many different types of distraction that don’t include electronic devices (i.e., fatigue, eating or drinking, adjusting the radio, etc.) those aren’t as easy to trace after-the-fact as cell phone use.
What our West Palm Beach truck accident lawyers want to stress is that just as this information can be invaluable to a personal injury lawsuit, it can also damage the case if there is evidence the plaintiff was engaged in some form of phone-related distraction.
Because Florida adheres to a system of pure comparative negligence, this fact alone will not sink a claim. State law allows recovery of damages minus plaintiff’s degree of fault. So if a plaintiff’s talking on the phone is determined to have contributed to the crash by 65 percent, plaintiff can still recover 35 percent of total damages from defendant.
Of course, the goal is to eliminate the possibility of the jury finding any degree of comparative fault, or alternatively, lessening it to the greatest extent possible.
That is what plaintiffs in the recent case of Antico v. Sindt Trucking Inc. were fighting in their wrongful death action after defendants asserted comparative fault of decedent for a trucking accident. Defendants claim decedent was comparatively if not totally negligent for her own death because she was communicating on her cell phone at the time of the crash.
Witnesses reportedly saw her on her phone in the minutes before the crash, and the deputies responding to the scene found evidence consistent with that assertion (i.e., no skid marks, etc.).
However, plaintiffs – representatives of decedent’s estate – argued that access to her cell phone history would amount to an egregious violation of her privacy. Plaintiffs referred to the requested inspection as a digital “fishing expedition.” When the trial court disagreed, plaintiffs appealed to Florida’s First District Court of Appeal.
However, appellate court ruled trial court’s order granting a defense motion to have an expert search the phone’s data from a nine-hour stretch the day of the crash was not a violation of law and didn’t depart from acceptable civil rules.
Defendants wanted to access decedent’s Internet website history, email messages, social and photo media that was posted during that time, as well as determine the location where that information was accessed.
The appellate court ruled the trial court appropriately considered decedent’s privacy by setting strict parameters for defense expert’s confidential inspection of the device, and allowed for the inspection to be videoed to ensure all parameters were followed.
The bottom line is plaintiffs need to recognize in these situations that phone data is potentially accessible by both sides. An experienced lawyer can help formulate the best strategy to reduce the negative impact your own cell phone data can have on your case.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Antico v. Sindt Trucking Inc. , Oct. 13, 2014, Florida’s First District Court of Appeal
More Blog Entries:
GEICO v. Paton – Proof of Damages in UM Trial Sufficient in Bad Faith Action, Oct. 5, 2014, West Palm Beach Trucking Accident Lawyer Blog