Tag Archives: punitive damages

Texting While Driving

 The Intentional Tort of Texting


Every legal theory has to start somewhere.   Punitive damages for drunk drivers didn’t arrive over night.   Punitive damages for intentionally disregarding the rights of others in general didn’t arrive over night.  It took the tragedy at Milwaukee’s Miller Park for the Wisconsin Supreme Court to decide in the victim’s favor on punitive damages.  

The punitive damages saga has another element on the horizon.  Representative Peter Barca and others have introduced, and both chambers may soon pass, a law banning texting while driving in Wisconsin.  With this law the argument to assess punitive damages against texting drivers will get that much easier. 

To get a feel for where you are going you have to know where you have been.   The “new” punitive damages law isn’t that “new.”  For the past 15 years Wisconsin residents have lived with a law allowing punitive damages when “evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.” Wis. Stats. Sec. 895.85(3).  Caselaw is chock full of examples where drunk drivers, batterers and trespassers were liable for punitive damages based on choices they made.

In 2005 the Supreme Court decided the Wischer case which involved the collapse of the “Big Blue” construction crane at Milwaukee’s Miller Park. The plaintiffs, the estates of workers killed in the accident, sought punitive damages based on the decision to lift a section of the stadium roof despite strong winds. They argued that the decision to proceed with the lift was in intentional disregard of the workers’ rights because 1) it was an intentional act that 2) resulted in the disregard of the plaintiffs’ rights.  As you already know the jury returned a massive punitive damage award. 

Before, and especially after, this decision plaintiffs attorneys have tried, and many times failed, to get circuit courts as gatekeepers to allow a jury to decided whether a texting driver’s actions warrant punitive damages.   

Plaintiff’s attorneys have argued that to impose punitive damages would both serve to punish the wrongdoing of a tortfeasor and have the exemplary effect of furthering the legitimate state interest of curbing unsafe driving practices involving cell-phones.   Punishing the wrongdoer is “easy” to show.  Simply put, a big judgment is punishment.  Without a texting while driving ban counsel have had to argue in generalities that punitive damages would further a state interest.  But maybe not for too much longer.  If the texting while driving ban is passed then there will be little difference when compared to the argument for punitive damages against drunk drivers.

First, I say “little difference” because it is against the law to drive while under the influence of alcohol and thus a legitimate state interest exists.  If and when the texting while driving ban is passed the State will have spoken and made obvious the legitimate state interest of curbing this unsafe driving practice.

Second, I say little difference because nowadays everyone is spreading the news that texting while driving is dangerous.  Milwaukee’s Sheriff Clarke, American Idol’s Danny Gokey and countless billboards across our state remind every driver that texting distracts and distracted drivers are dangerous.    A driver choses to text while driving.  That driver, I believe it is safe to argue, was aware of the dangers involved because of the billboards and, of course, our favorite son Danny Gokey.  That driver made the decision to take his/her eyes off the road.  Wisconsin’s Civil Jury Instruction 1070 states that when you look but don’t see what is in plain sight it is as if you did not look at all.   Texting takes driver’s eyes and attention off of the road.  A texting driver’s attention is influenced by the need to stare at their little cell phone screen.  They are “under the influence” of the need for constant communication.  Is it that different than drunk driving?  Is it worse?

Representative Barca has been quoted as saying that texting is 6 times more dangerous than talking on the phone while driving.  Simply Google “texting while driving is like drunk driving” and a gaggle of scientific and not so scientific studies will pop up.  One study shows that a texting driver’s slow reaction time equaled 30 extra feet of stopping distance.   The same study showed that a drunk driver’s reaction time cost him “only “ 15 extra feet of stopping distance.   Studies are now showing that texting while driving is, in some instances, more dangerous than driving while drunk.   

It’s clear that punitive damages are available under section 895.85 if a defendant “acts with a purpose to disregard the plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded.” Strenke 2005 WI 25 para 3.  Don’t be surprised to see a slew of punitive damage causes of action soon after the texting while driving ban is passed.   Isn’t it about time?

Visit www.grothlawfirm.com for more information or to contact attorney Jon Groth.

Texting/Talking While Driving or Driving While Texting/Talking?

Shouldn’t it be driving, period.  Driving while distracted is just plain dangerous.

Time Magazine had a good article about documents recently uncovered from the National Highway Traffic Safety Administration.  In short, drivers:

were faster to brake and caused fewer crashes when they had a .08% blood-alcohol content than while sober and talking on a cell phone.

In Wisconsin, if you act in an intentional disregard of others and you injure someone you can be liable for punitive damages.  That is certainly the case for repeat drunk drivers.  Why wouldn’t this apply to repeat “texters” or “talkers”?

Distracted Drivers

I’ve emailed comments on a couple list serves about my opinion on what set of facts would allow punitive damages in Wisconsin.  In Wisconsin, the standard is set forth in the Strenke decision.

The majority opined:

In response to the issues presented, we conclude that
a person acts in an intentional disregard of the rights of the
plaintiff if the person acts with a purpose to disregard the
plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded. Furthermore, we determine that a defendant’s conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute.

I’ve been thinking about this language as it applies to drivers on cell phones.  The National Safety Council has a few studies about cell phone ban laws across America.  According to nsc.org:

Driver inattention is a leading cause of traffic crashes, responsible for about 80 percent of all collisions, according to the National Highway Traffic Safety Administration (NHTSA).

Check out the link and especially the videos of the drivers who are on their cell phones.   I argue that each one of those drivers were very aware of the risks of driving while on a cell phone  (this applies to driving while texting too).  If they were aware of the risk doesn’t it follow that the punitive damages law would apply to their actions?

Is that a bad thing?  Punitive damages are meant, in part, to prevent individuals and corporations from acting in a manner that will cause harm to others.  So, don’t drive while on your cell phone, or buy a bluetooth headset.

  I’d like to know your thoughts.

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in West AllisSheboygan,  Plymouth,  and Germantown.

If you’d like to submit a question or case please complete a case submission form.

Jurors, Elephants and Donkeys

The Wisconsin Lawyer Magazine has a quick read entitled Politics in Civil Jury Selection.  Very interesting.

This is one of the more important parts of my job.  Who should I keep on a jury?  What questions do I ask in order to figure out who would make a good juror for a particular set of facts. Who will the defense want to keep or strike?

Alan Tuerkheimer, UW Law 2000, is a trial consultant with Zagnoli McEvoy Foley, LLC in Chicago.  The Zagnoli firm conducted a survey of mock jurors in order to determine a relationship between political party identification and damages verdicts.

Some sections that I found interesting:

The Zagnoli study found that while political leaning tends to correlate with what jurors say about damages in civil cases, it does not predict whether or how much they actually award. In other words, political leaning is related to what a juror says but not necessarily to what a juror does; thus, political party allegiance should not be too heavily relied on during jury selection.

More specifically, Republicans were more likely than Democrats to make an at fault person pay damage awards for future medical expenses.

A closer look shows that a high proportion of Democrats (86 percent), but an even higher proportion of Republicans (92 percent), would consider awarding money for future medical expenses.

Finally, when it comes to the premise of awarding punitive damages both parties were high.  Again, like I assumed Democrats were more likely to agree (92 percent agreed) but I was a little surprised that so many Republicans agreed (80 percent agreed).

I recommend the article.  I ask this of my readers.  If anyone finds similar articles about jury selection please let me know.  I like reading about this stuff.

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in Milwaukee, West Bend, New Berlin and Wauwatosa.

Click here to submit a Case or Question.

A Drunk Driver Ruins the Celebration

Once again a drunk driver ruins a party.  The Milwaukee Journal Sentinel reports that a drunk driver killed a Harley rider during last week’s 105th Harley Davidsons Birthday Celebration.  The drunk driver was about 3 times over the legal limit at the time of the collision.

The collision occurred at about 2:15pm on August 29th. She must have started drinking pretty early in the day to get that drunk before 2:15pm.  When is it ever worth drinking that much that early?  And why would you ever think of driving?

The victim is a 55 year old Michigander.

Once again the call goes out to the legislature to tighten the drunk driving laws in Wisconsin.  Hopefully, the DA assigned to this case will enforce the laws currently on the books.