With all the talk about distracted driving on U.S. roads in recent years, some people have started to tune out the statistics and horror stories. Some people might even characterize the alleged epidemic of distracted drivers as a myth. However, statistics show that it is decidedly not a myth, and indeed, the tendency to drive while multitasking is actually increasing in frequency. It is one of the most common causes of automobile accidents across the country, and in Florida, the problem is exceptionally relevant for a variety of reasons.

Patterns Are Clear

While most people think of distracted driving as using a smartphone or other electronic device while driving, in reality, anything that takes your hands off the wheel or your eyes off the road can qualify under Florida law. Texting qualifies, and it is perhaps the worst offender in terms of causing accidents – studies have shown that more than 50 percent of people have used a mobile app beyond GPS while operating a motor vehicle. For the last four years of available data, the overall crash rate in Florida has risen, with a significant rise between 2015 and 2016. The numbers of injuries have risen slowly but steadily – from 39,141 in 2013 to a record-setting 49,231 in 2016.

In terms of texting or smartphone use specifically, the numbers give one pause for concern. A recent study conducted nationwide gave Florida the second-worst percentage of distracted drivers, second only to Louisiana. However, there are demonstrably fewer consequences for distracted drivers in Florida because it is one of only five states where texting while driving is not a primary offense. In other words, law enforcement may not pull over someone who is texting and driving without having another reason to stop them, such as speeding. This can frustrate efforts to curb the practice, and can harm a plaintiff’s chances in court, simply because distracted driving may not appear on the citation at all – secondary offenses are sometimes not recorded.

An Issue of Negligence

While they have unusual features, at the heart of it, distracted driving cases usually fall squarely under the area of negligence law. Negligence is when someone is harmed because of the reckless or willfully indifferent conduct of another person, and it makes up the bulk of auto accident and other personal injury cases. Most of the time, it requires proving four elements that are considered part of Florida’s common law of negligence (meaning that they are taken from law books, rather than codified with statutory law). Those elements are:

  • The existence of a duty of care between motorists, which Florida has established in past cases
  • The breach of that duty
  • A showing that the breach was caused directly by the defendant’s conduct, with no other supervening cause
  • A showing that you, the plaintiff, suffered harm; be advised, though, that if you only sustain minor injuries like cuts and bruises, you will likely not be able to show tangible harm, as injuries of that nature disappear quickly

Negligence Per Se

Depending on the specific facts of your case, you may be able to bring a case alleging not just negligence, but negligence per se. Negligence per se is a legal doctrine that states that if a person violates a penal statute, then he or she is negligent as a matter of law. In other words, it can simply be established that the defendant was negligent, instead of the plaintiff having to painstakingly prove all four elements.

The important thing to remember is that the person driving distracted must violate a penal statute – that is, a statute that can result in criminal charges. If, for example, a distracted driver hits you and causes a death, he or she may be charged with vehicular homicide. If they are found to have committed such a crime, a penal statute has by definition been violated, meaning they will likely be found liable for negligence per se. In some cases, trying to assert negligence per se is not necessary, but it can help on occasions where memories are hazy or stories are disputed.

Consult a Knowledgeable Attorney

Distracted driving costs far too many lives each year. If you have been in an accident with a distracted driver, you need an experienced attorney who knows how to handle such a case. The zealous Fort Lauderdale distracted driving accident attorneys at The Law Office of Joseph J. LoRusso, P.A. are happy to sit down with you and help you assess the best path forward. Contact our offices today to set up an initial consultation.  

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