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?