The Burning Questions
Unless you are a school bus driver in a moving school bus or under the age of 18 getting caught texting while driving is an infraction and will cost you $100 bucks and no drivers license points. If you are the victim of an automobile accident caused by a texting driver the statute does nothing to help you in a claim or civil trial for damages. Texting while driving is not gross negligence nor negligence per se and you will not be entitled to punitive damages simply because the other driver was texting while driving.
"Getting caught" texting while driving is difficult at bemst. The officer must have an articulable suspicion for believing you are texting while driving. Holding the phone in your lap, looking at the phone, and pressing on the keypad will not be enough suspicion for a stop because talking on the phone, dialing numbers and checking caller I.D. while driving is still okay in North Carolina.
My approach to injury cases in which texting while driving is suspected is to subpoena cell phone and Facebook check-in records and correlate the time of the texts or Facebook posts with the time of the accident. If the times match it can be argued that the cause of the accident was distracted driving. At mediation or trial the jury can be shown the actual message or post. Although the jury cannot award punitive damages for texting while driving the jury can certainly weigh the evidence appropriately.
It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:
(1) Manually enter multiple letters or text in the device as a means of communicating with another person; or
(2) Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
You may qualify for the "Hollywood Exception". The law is very clear. In order to qualify under the exception to the law everyone else must follow you must be:
(1) Floyd Mayweather, or
(2) Lindsay Lohan*
*Hugh Hefner endorsement required
Recently a 14 year old kid was shot dead in his middle school hallway. He was brandishing a pellet gun. It looked an awful lot like the real thing. I have sons the same age as this kid. I had given them Air-Soft pellet guns for Christmas remarkably similar to the one this kid held when he was killed. I returned them to the store where I had purchased them on the same day. The clerk asked, "Why are you returning these?" I replied, "Because I kid in Brownsville just got killed with one."
We have laws that protect us against unreasonably dangerous products. (Think of the Ford Pinto that exploded upon rear-end impact.) A balancing test is performed under the law and the utility of the product is weighed against its risk of causing bodily injury and the cost of removing the risk to determine whether the product is unreasonably dangerous and defective.
I take the position that replica toy guns targeted for sales to children should be illegal as an unreasonably dangerous and defective product. They have very little utility when weighed against the risk.