WSOC-TV reports that a woman who caused a fatal accident in northwest Charlotte has admitted to texting and driving prior to the accident. The accident occurred on Mount Holly Road just before midnight on Sunday night. In addition to the admission of texting and driving, police also found various drugs on the woman following the accident. According to police, she was in no shape to drive and has had several drug charges in the past. An eyewitness to the accident described the woman’s driving as being “all over the road.” The woman was taken to jail after the accident and is facing charges of misdemeanor death by motor vehicle, texting while driving, and trafficking drugs.
Although the texting and driving charge might be the least of the woman’s worries right now, it is worth noting the different legal treatment that texting and driving receives compared to the treatment of other dangerous behaviors such as drunk driving. There are numerous articles and studies available detailing the dangers of texting and driving, many of which claim that drivers who text and drive exhibit greater impairment than drivers who drink and drive. In addition, the trend in recent years has shown a decline in drunk driving fatalities (28% decline from 2005-2012), while the number of distracted driving fatalities has increased (28% increase from 2005-2008 alone).
However, the laws of most states, including the laws of North Carolina, continue to punish drunk driving much more severely than texting and driving. This different treatment is seen both criminally and civilly. A driver in North Carolina convicted of DWI can receive a fine of thousands of dollars, potential jail time, and a misdemeanor criminal conviction. A driver in North Carolina cited for texting and driving, on the other hand, receives a $100 fine for a traffic infraction and doesn’t even receive any points on his license.
For another example in the disparity in punishment, let’s look at a person who causes a fatal car accident while drinking and driving compared with texting and driving. The felony and misdemeanor death by vehicle statute (G.S. 20-141.4) requires a person to have been engaged in impaired driving to be guilty of felony death by vehicle. Any other traffic violation which unintentionally causes a fatal accident is a misdemeanor death by vehicle violation. Therefore, a person causing a fatal car accident while drinking and driving can be guilty of felony death by vehicle, while a person causing a fatal car accident while texting and driving can only be guilty of misdemeanor death by vehicle.
Felony death by vehicle is a Class D felony. A Class D felony is punishable by a sentence ranging from 38 to 160 months, depending on prior convictions. Anyone who has committed a Class D felony must be sentenced to active jail time. Misdemeanor death by vehicle is a Class A1 misdemeanor. The punishment for a Class A1 misdemeanor ranges from 1-150 days, depending on prior convictions. A person with no prior convictions can receive a community punishment (meaning punishment that does not include active jail time and also does not require drug treatment or special probation).
Now, let’s turn to the disparity in the civil treatment of drunk driving compared with texting and driving. A person injured in a car accident with a drunk driver can file a civil claim for damages against the drunk driver. A violation of the impaired driving statute is not only evidence of negligence but also gross negligence. This distinction is relevant when a defendant raises the defense of a plaintiff’s contributory negligence, as well as when a plaintiff claims punitive damages. Typically, a plaintiff’s contributory negligence will act as a bar to his recovery of all damages against a negligent defendant. However, if that defendant acts with gross negligence, a plaintiff’s mere contributory negligence will not bar his recovery of damages.
Gross negligence has been defined by the North Carolina Supreme Court as conduct done “in conscious and intentional disregard of and indifference to the rights and safety of others.” (Hinson v. Dawson (N.C. 1956)) In motor vehicle cases, the North Carolina Supreme Court has determined that
Our case law as developed to this point reflects that the gross negligence issue has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated, (2) defendant is driving at excessive speeds, or (3) defendant is engaged in a racing.
Yancy v. Lea (N.C. 2001)
Therefore, a contributorily negligent plaintiff (such as a plaintiff who has run a red light or was speeding) can still potentially collect damages from a drunk driver, and any plaintiff can potentially collect punitive damages from a drunk driver.
Other North Carolina courts, however, have been hesitant to expand a finding of gross negligence to situations where one of these three factors is not present, unless there is an “equivalent indicia of conduct that is willful, wanton, or done with reckless indifference.” (Clayton v. Branson (N.C. App. 2005)) It is unlikely that courts would find the act of texting and driving to meet this level of conduct.
In the 2013 case Bostic v. Mader, the U.S. District Court for the Western District of North Carolina applied North Carolina law in a case which involved a claim for punitive damages against a defendant who was texting and driving. In denying this claim, the court noted that the texting and driving statute specifically provides:
Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in an action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle.
The court further explained that
Ordinarily, a standard of conduct established by a safety statute must be followed. Where the safety statute at issue provides to the contrary as it pertains to civil liability, however, violation of the statute, without more, does not constitute negligence at all. Consequently, assuming Plaintiffs had properly pled, and could persuasively prove, that [the defendant] was “texting” in violation of N.C. Gen. Stat. § 2-137.4A at the time of her collision with [the plaintiff], such evidence standing alone would be insufficient as a matter of law to sustain a negligence verdict in favor of Plaintiffs on this theory. Likewise, it could not support a finding if willful or wanton conduct and therefore will not support a claim for punitive damages.
Therefore, not only does texting and driving not constitute gross negligence, a violation of the statute is insufficient to support even a claim for mere negligence.
It is interesting to note the differences in attitudes between texting and driving compared with drinking and driving, although both have been shown by studies to be dangerous behaviors. As people became more aware of the dangers of drinking and driving, laws and punishments became harsher. Perhaps the same will be true for texting and driving.
If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.