By Richard I. Segal, Esq., Ira H. Leesfield, Esq. and Kurt Zaner, Esq.
Socrates, as reported by Plato, noted that “[t]he unexamined life is not worth living.” Today, the “good life” that we usually seek would be somewhat removed from the values Socrates espoused.  Nonetheless, we all could agree that we can only attain “good” if we are alive.  If life is what we live for, and good is what we seek, then why do many of us drive while we hold conversations on our cell phones, diverting our attention from the road – tempting fate?

As lawyers and as a legal community, we need to reconceptualize the meaning and worth of the gift of life.  We check our e-mail on our BlackBerrys, we discuss client matters on the phone, and we even send and receive faxes – all while driving through dangerous traffic or in residential neighborhoods. As lawyers, we should plead to the courts to bang the proverbial gavel of consciousness, waking up a society dormant to the risk of driving while on the cell phone.  And perhaps the only means by which courts will be able to accomplish this is the imposition of punitive damages.
Examining the Evidence of Danger
According to the National Highway and Traffic Safety Administration, distracted driving contributes to one in four traffic accidents. Astonishingly, between 4,000 and 8,000 crashes per day are associated with distracted driving.
The ubiquity of cell phone use is now an unfortunate but established part of our driving environment.  At any given moment throughout the day, 8 percent of drivers on the road are using their cellular phones. Moreover, two separate field studies (found here) have corroborated the fact that over 40 percent of Americans admit to conversing on the cell phone while driving.
One study concludes that cell phone drivers’ reaction times are reduced by approximately 20 percent and that such drivers are significantly more likely to be involved in rear end collisions than drivers not using cell phones, even though the drivers’ eyes are fixed on the road ahead. The study’s authors conclude that this can be attributed to “inattention blindness,” which suggests that the cognitive distraction caused by cell phone usage decreases a driver’s awareness of important information in a driving scenario.  Even more startling is the finding that hand-held and hands-free phones are equally faulty in creating distracted drivers.
Most shocking of all is the conclusion that the performance of drivers who are conversing on cell phones is more impaired than drivers who are intoxicated.
Employer Liability

With new science pointing out the dangers of driving while on the cell phone, law firms and other employers are left with the dilemma of balancing productivity and safety.  Ideally, employers want to be in constant contact with their employees.  For example, many law firms even go so far as to pay their attorneys’ cell phone bills.  However, a law firm could be held liable for its employees under respondeat superior or negligence.  The doctrine of respondeat superior is based on the assumption that the master controls the acts of the servant and is therefore liable for the consequences of those acts.  Thus, it is foreseeable that a law firm could be held liable for an employee who causes an accident while being on the cell phone with his employer or a client.

Managing partners should also recognize that in 1999 Smith Barney was sued when one of its employees caused an accident, killing a man while conducting Smith Barney business on his cell phone.  Faced with a jury trial, Smith Barney settled the lawsuit for $500,000.
In 2001, a law firm was sued when one of its attorneyshit and killed a child while using her cell phone and driving. Allegedly, the attorney was talking on her cell phone and doing work for the firm at the time her vehicle swerved and hit the child.  Before the trial, in 2004, the employer law firm settled with the child’s family for an undisclosed amount.

Thus, it is vital that employers consider the ramifications of allowing or passively agreeing to allow employees to do business on their cell phones while driving.  Law firms should consider having a clear policy stating specifically where they stand on the cell phone issue and what they expect from their employees.
Legislative Failures
With a myriad of behaviors contributing to driving while distracted and the ostensible difficulties of enforcing the pertinent statutes, many states and local governments have sought to confront the most visible and obvious culprit: driving while talking on the cell  phone.  Interestingly, by 2005 lawmakers in 26 states had proposed 62 bills limiting cell phone use while driving. Despite these efforts, legislative attempts have been met with fierce resistance.  As a result, attempts to restrict cell phone use have enjoyed only limited success.

 
Another Option:  Punitive Damages
While it is likely impossible to eliminate the habitual and pervasive practice of phone use behind the wheel, at the very least the law should possess the proper means to compensate its victims adequately and to punish culpable tortfeasors.  This can best be effected through the application of punitive damages.  Just as punitive damages are available in DWI collisions, they should also be applied to collisions that occur because drivers were using their cell phones.

The U.S. Supreme Court has held that punitive damages are aimed at deterrence and retribution, and may be imposed to further a state’s legitimate interests, BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1995).  Though the dearth of legislation would suggest otherwise, the protection of our own and other’s lives should indeed be such a legitimate interest.
States control the discretion over the imposition of punitive damages.  A majority of states permit juries to assess punitive damage awards against defendants who cause auto accidents while intoxicated.  In general, punitive damages may be assessed when the act in question was committed with malice, moral turpitude, wantonness, willfulness, outrageous aggravation, or in reckless indifference to another person’s legal rights.
All of the justifications for punitive damages in DWI cases can be effectively transplanted to cases of driving while on the cell phone.  The similarities between the two are undeniable.  Like DWI, driving while on the cell phone is an intentional, voluntary behavior that unnecessarily endangers drivers, passengers and pedestrians.
Punitive damages assessed against drunk drivers will serve as the model by which courts can assess punitive damages against those recklessly driving while conversing on their cell phones.
Conclusion
Let us not forget: life is here today, and it is our responsibility to maintain it.  So, the next time you are in the car, before picking up your cell phone, examine if your life is worth living.  As lawyers, we can lead by example; and with punitive damages as a deterrent, others are sure to follow.
 
This article was originally published in 2007 by the ABA and was updated and republished in 2013 by the Colorado Trial Lawyers Association.  It has been edited and condensed for this blog.
© 2007 American Bar Association.  Reprinted by permission.  Originally appeared in Vol. 36, No. 4, The Brief (Summer 2007).  This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.