On January 21, 2021, Virginia became one of the only states in the country with a comprehensive distracted driving law. It is now illegal for drivers to hold and use a cell phone in the Old Dominion. The previous law had very limited applicability.
Hand-held devices combine all three forms of distracted driving: (1) these operators take their eyes off the road (visual distraction); (2) they take a hand off the wheel (manual distraction); and (3) they take their minds off driving (cognitive distraction). However, as outlined below, other distractions are often just as serious.
The law also muddied the waters in terms of injury claims. Many people are unsure of their rights. Even if the tortfeasor (negligent driver) did not violate the cell phone law, a Richmond accident lawyer can still obtain compensation for these car crash victims.
Device Distraction and Negligence Per Se
If a driver violates the new cell phone law and causes a crash, that driver may be responsible for damages as a matter of law. The negligence per se doctrine usually applies if the tortfeasor violated a safety law and the victim is of the class the law was designed to protect.
These cases are not just easier for Richmond personal injury attorneys to prove. Since these drivers arguably ignore the safety of others, jurors often award substantial verdicts in these situations. These verdicts usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
However, even if a driver was using a hand-held phone, many emergency responders do not issue tickets. Generally, responders arrive at crash scenes after the fact. If they did not see the tortfeasor using a phone, these charges often do not hold up in court. So, from this perspective, writing a ticket may be a waste of resources.
Furthermore, many responders do not issue tickets after accidents as a matter of departmental or personal policy. Many police officers view car crashes as civil disputes, and they do not want to get involved.
If emergency responders do not issue a cell phone ticket, the ordinary negligence doctrine usually applies. In this context, ordinary negligence is usually a lack of reasonable care. The law holds commercial operators, like Uber drivers and truck drivers, to a higher standard.
This rule also comes into play if a hands-free device distracted the motorist and caused a crash. Considerable evidence indicates that hands-free phones are worse than hand-held phones. Hands-free devices are visually and cognitively distracting. Additionally, these gadgets give many drivers a false sense of security. So, they often take unnecessary risks behind the wheel.
In these claims, victim/plaintiffs must prove negligence, which again is a lack of care, by a preponderance of the evidence, or more likely than not. Evidence in these claims includes:
- Erratic driving before the crash
- Device use logs
- Witness statements
- Presence of a phone near the driver
- Tortfeasor’s statements about device use
A preponderance of the evidence is the lowest burden of evidence in Virginia law. So, a little bit of this evidence goes a long way.
Device use logs are often the most compelling bit of evidence. An attorney must act quickly to preserve them. Frequently, people “accidentally” delete these logs. Deleted logs are still buried on the device’s hard drive. But it’s more expensive and time-consuming to extract them.
It’s much easier to send a spoliation letter. These letters create a legal duty to preserve all possible physical evidence for trial. Spoliation letters also preserve other electronic evidence, like a vehicle’s Event Data Recorder. An EDR is basically like a black box flight data recorder.
Victim of an Auto Accident? Learn More with a Free Consultation
Distracted driver crash victims usually have multiple legal options. For a free consultation with an experienced personal injury attorney in Richmond, contact Geoff McDonald & Associates, P.C. We do not charge upfront legal fees in these matters.