By: John A. Houghton
With the passage of House Bill 673, it is now illegal in Georgia for drivers to hold an electronic device that could distract them from the roadway. As is the case with much legislation, this new law will have a direct impact on how auto and truck injury cases are litigated.
Specifically, in injury collision cases where an at-fault driver is cited with violating this law, the Plaintiff will likely be entitled to a new jury charge on negligence per se. In other words, an admitted violation of this statute is an additional way that Plaintiff can prove negligence at trial.
Drivers have previously been prohibited from reading, sending or writing text based communications while driving in Georgia under OCGA 40-6-241.2. However, the new law prohibits the mere handling of the device while driving. This will make proving a violation of the new statute much easier for law enforcement, prosecutors and Plaintiff's counsel.
Furthermore, a violation of this statute may pave the way for Plaintiffs to finally present evidence of texting and driving as an appropriate basis for punitive damages at trial under OCGA 51-12-5.1(b). The insurance lobby has pushed hard against this type of legislation for a long time, as texting and driving has become a pervasive cause of severe collisions the past decade. Like drinking and choosing to drive, texting while behind the wheel is a consciously indifferent conduct that the driver knows is putting others on the roadways at risk (the legal criteria for punitive damages).
The Georgia Court of Appeals has previously ruled that the proper use of a wireless device while driving does not constitute a violation of the duty to exercise due care and is not enough to support punitive damages. See Lindsey v. Clinch Cnty. Glass, Inc., 312 Ga. App. 534 (2012). With the new legislation soon becoming law, hopefully a few test cases with the right set of facts will change Georgia appellate law on this issue.
Georgia, like numerous other jurisdictions, should allow punitive damages to be recovered when there is clear evidence that the defendant was using a wireless device while driving