Distracted driving is a widespread problem on Florida roads, leading to numerous accidents and even fatalities. Between smartphones, GPS devices, and other car distractions, it can sometimes be hard to prove who is really at fault in distracted driving accidents.
Keep reading to learn more about how an injury attorney proves fault and recovers compensation in a distracted driving case.
Understanding Distracted Driving
Distracted driving occurs when the driver's attention is diverted from the main task of driving, which significantly increases the risk of an accident.
Distracted driving can be grouped into three categories:
- Visual distractions: Anything that takes the driver's eyes off the road, such as looking at a cell phone or checking a map.
- Manual distractions: anything that takes one or both hands off the steering wheel, such as eating, adjusting the radio, or applying makeup.
- Cognitive distractions: Anything that takes the driver's mental focus away from driving, such as thinking about work or having an exciting conversation.
Common distractions include texting, talking on a cell phone, eating, and applying makeup. Florida bans the worst of them outright. Under Florida Statute 316.305, the Florida Ban on Texting While Driving Law, a driver may not manually type characters into a wireless device to text, email, or instant message while the vehicle is moving.
Distracted Driving Laws
Florida has two statutes on point, and both matter to an injury claim.
- Texting while driving is banned statewide by Florida Statute 316.305. A first offense is a noncriminal traffic infraction punishable as a nonmoving violation. A second offense within five years of a prior conviction is punishable as a moving violation.
- Holding a phone at all is banned in a designated school crossing, school zone, or active work zone by Florida Statute 316.306. That violation is a moving violation and carries three points on the license, though a first offender can avoid the fine and the points by completing an approved wireless communications device driving safety program.
- Florida Statute 316.305(3)(c) limits what happens at the roadside. An officer who stops a driver for texting must tell the driver he or she can refuse a search of the phone, and may not access or confiscate the device without a warrant.
A traffic citation is not the same thing as civil liability, but the conduct the statute describes is the conduct your claim is built on.
Legal Aspects Of Proving Fault
Your attorney must establish negligence to legally prove a driver is at fault for distracted driving. Negligence is a legal term that means a driver fails to exercise reasonable care while operating a vehicle, resulting in an accident or injury.
In addition, we must also prove that the distraction was partially or entirely responsible for causing the accident.
Evidence Gathering
Gathering evidence is how fault gets proven in a distracted driving case. A crash claim is a civil case, so nobody has to prove the other driver guilty of anything. You have to show it is more likely than not that the distraction caused the crash. Below are some important pieces of evidence to consider when building your case:
- Police report: The police report written after the accident can provide information about the circumstances of the accident and provide a preliminary assessment of fault. Ensure the report is properly completed soon after the accident to ensure optimal accuracy.
- Witness testimony: Statements from witnesses can support your claim that the other driver was distracted during the accident. Collect the contact information of all witnesses at the accident scene so you can question them later.
- Cell phone records: Cell phone records can be used to prove that the driver was talking on the phone or texting at the time of the accident. Your attorney can help you obtain these records through legal action.
- Surveillance footage: Video footage from traffic cameras, nearby businesses, or personal surveillance cameras can provide visual evidence of the accident and the other driver's actions leading up to the accident.
- Physical evidence: Items found in the vehicle, such as headphones or fast food, can prove that the driver was distracted. Photograph any physical evidence found at the scene of the accident.
Subpoenaing Electronic Device Records
In some cases we subpoena the driver's cell phone records and other electronic records to show whether the device was in use at the time of the crash. One Florida rule shapes this: under Florida Statute 316.305(3)(d), a user's wireless billing records are admissible to prove a texting-while-driving violation only where the crash resulted in death or personal injury. That is exactly the situation an injury claim arises from. Records we ask for include:
- Call records: the driver's call log is often the evidence the case turns on, because it places the device in use at the moment of impact. These records can show the duration of calls, time stamps, and text messages exchanged before or during the accident.
- Text message records: Similar to cell phone records, text message records can reveal whether the driver was texting immediately before the accident.
- Social media activity: Any form of social media use while driving can be considered distracted driving. Gathering evidence of social media use during the accident can strengthen your case. In some cases, the activity may even be publicly available.
- Video footage: Surveillance cameras or dashcam footage can provide important video footage of the accident. They can show the driver's behavior and the distractions that led to the accident. Check your dash cam recordings and look for possible surveillance cameras near the accident scene.
Eyewitness Accounts And Testimonies
Eyewitness accounts can be extremely helpful when establishing fault. If someone saw the driver engaging in a distracting activity before or during the accident, it is no longer a “he-said, she-said” situation. Try to gather contact information and signed statements from passengers, other drivers, pedestrians, or bystanders who witnessed the incident as soon as possible.
In some cases, eyewitnesses will have to testify in court. Their testimony can help prove that the driver was distracted during the collision.
Fault in a distracted driving case is proven by the weight of the whole record, not by any single document. Photograph the scene, preserve your own phone data, and hand everything to your attorney.
Legal Representation And Compensation
Once you’ve finished seeking medical attention for your injuries after an accident, your first priority should be to seek experienced legal representation.
Choosing The Right Attorney
It's important that you choose a personal injury attorney who has verifiable experience with car accident lawsuits. You can verify an attorney’s experience by reading client reviews and case results online. An experienced attorney can:
- Gather evidence of the driver's negligence
- Access digital records to show whether the at-fault driver was using electronic devices
- Negotiate with insurance companies for a fair settlement or insurance claim.
When looking for the right attorney, consider the following:
- Track record in similar cases
- Experience with distracted driving cases, specifically
- Availability for a free consultation
Seeking Compensation
Your lawyer will help you recover compensation after a distracted driving accident in several ways:
- Insurance claim negotiation: your attorney handles the negotiation with the insurance company so you are not arguing valuation with an adjuster on your own.
- Lawsuit: If the insurance company's settlement offer is inadequate, your attorney can file a lawsuit to obtain adequate compensation.
- Identify all possible sources of compensation: more than one party often shares responsibility for a crash. Florida apportions damages by percentage of fault under Florida Statute 768.81, and subsection (6) bars you from recovering anything at all if you are found more than 50 percent at fault, so how the blame is divided decides whether there is a claim.
Remember that compensation can cover various damages, such as
- Medical expenses (current and future)
- Lost wages
- Pain and suffering
- Property damage
Speak To A Car Accident Attorney Today
Florida Statute 95.11(5)(a) gives you two years from the date of the crash to file a distracted driving lawsuit, and phone records and surveillance video are routinely overwritten long before that deadline arrives. If you were injured by a distracted driver, contact Weinstein Legal Team today to speak with an attorney about your case. Our personal injury attorneys work on a contingency fee basis, so you won’t pay any fees unless we win your case. You will not owe attorney's fees or costs unless we recover for you.
Click here to schedule a free case review with an attorney today, or call us at 888.626.1108 to get started now.
