Last week, we took a look at what to do if you're pulled over for texting and driving in South Carolina — this week, we'll be discussing what you may be entitled to if you are involved in a car wreck where the at-fault driver was texting when the accident occurred.
While there are increasing numbers of high-profile campaigns to discourage distracted driving, the truth is that more people are texting behind the wheel in 2016 than ever before. This has led to an increasing number of car wrecks in which texting was a significant factor in the cause of the collision — and the rate of injuries is increasing, too.
If you've been the victim of a vehicular collision in which the person at fault was texting while driving, you may be entitled to compensation to help cover your medical bills, car repairs, and other problems that occur as a result of the wreck.
Texting While Driving is Intentional Negligence
Maybe you waited your turn at a stoplight only to be T-boned by someone who was too busy answering a friend's text to realize the light had turned red, or were sideswiped by someone trying to send a text message and turn left at the same time.
Perhaps you've had that sinking feeling when you realize the driver of the car about to hit yours isn't even looking up at the road.
Drivers are considered to have a "duty of care", or obligation, towards others on the road. All 50 states impose this standard, and a driver who chooses to text behind the wheel is intentionally choosing to distract themselves and violate this duty of care by placing other drivers, passengers, and even bicyclists or pedestrians at risk.
This is a negligent act, and the driver may be held liable for damages caused as a result of that negligence.
What Kind of Damages Can Be Recovered?
If the driver of the other vehicle is found to have been negligent as a result of distracted driving, the victim of the driver's negligence may be entitled to damages for the victim's injuries including:
- Automotive Property Damage: The cost of required repair, whether it's engine repair, body shop work, or even compensation for the car's fair market or replacement value if the car is "totaled."
- Personal Property Damage: Personal property damaged in the accident, such as computers, clothing, jewelry, electronics, and other personal items.
- Medical Bills: The cost of all treatment causally related to the victim's injuries including, but not limited to, ambulance bills, ER costs, doctors' bills, hospital costs, chiropractic treatment if required, and physical therapy.
- Lost Wages: Any lost wages from time missed from work related to the victim's injuries as well as future earnings you might have been able to make if the accident had not happened, for example.
- Other Out-of-Pocket Expenses: Rental car costs, the cost of prescription or over-the-counter medications needed as a result of the accident bandages, crutches, nursing care, and other out-of-pocket costs.
- Pain and Suffering: Damages may be recoverable in the case of mental anguish, emotional distress, loss of enjoyment of life and other intangible, but still very real, losses.
- Punitive Damages: If the jury decides there is clear and convincing evidence that the at-fault's conduct was willful, wanton, or reckless, then the victim will be entitled to "punitive damages" intended to punish the at-fault and discourage others in the community from engaging in the same behavior.
Make sure that the police officers who respond to the scene of the wreck are informed that the driver was texting when it happened. They may issue a citation that would go into the police report, but South Carolina's laws on distracted driving may mean they're not able to write a citation without having a clear and unobstructed view of the texting in the first place.
Call the police to the scene of the wreck. In any large-scale vehicular collision that includes injuries or serious damage, it's imperative to make sure the police are on the scene. The officers will be able to survey the accident scene and speak with all parties involved to determine injuries, if any. They'll dispatch necessary medical care and create a police report, which will put together the contact information of both the parties involved in the car wreck and also witnesses and what those witnesses saw or heard. If a witness saw the driver texting when the accident occurred, this will be important in helping to build your case.
In the accident report, the police will generally draw a diagram of the collision, noting which driver they believe to have been at fault and why. They often measure skid marks as well, which helps to discern speed at time of impact and whether the driver was too distracted to brake. Make sure you follow up with the police afterwards — for a small fee you're able to get a certified copy of the report.
Take Photos. Lots and Lots of Photos.
We've said it before in other blog posts, but one of the greatest aspects of cell phones is how easily they transition into a camera when you need on-the-spot photos right now. Photographs make for effective supporting evidence, able to show point of impact, where stop signs or traffic signals are located, and skid marks that show whether or not both parties hit their brakes.
Take photos of every conceivable angle of the aftermath of the car wreck, both your vehicle and that of the at-fault driver. Have a witness take photos of your condition as well.
Gather Witness Statements, If You Can
Police officers are going to be incredibly busy at the scene of an accident, especially if injuries are involved. They'll be busy dealing with the accident report, helping to clear the road of debris, and directing traffic to maintain basic safety for other drivers on the road. They may simply not have the time to question witnesses until after many have had to leave.
You may ask witnesses if they would be willing to tell you what they saw and heard while you record them speaking. This can be strong support for your case in court. Remember to gain consent before recording these statements, and take down the witnesses' names and contact information.
Consider Cell Phone Records
Most cell phone companies will not release individual records unless forced by a court order. Nonetheless, they can be powerful proof that the driver was using his or her cell phone at the time of the collision, as well as geographical location and whether the interaction was a phone call or a text message. Time may be of the essence in obtaining these reports as the cell phone companies keep limited data on hand as to the sending and receiving of text messages and the only record may be the actual phone used prior to the collision.
Seek medical treatment after a vehicle collision for your injuries. Medical bills and treatment records are a direct link between the car wreck and your injuries. Accept medical care at the scene if you are injured in any way. Treatment provided at the Emergency Room can provide importance evidence that your injuries were a result of the accident!
If you choose not to go to the ER, see your primary care physician immediately for your injuries.
Never delay treatment. If you don't seek care until days or weeks after the car wreck, the other party's insurance company may argue that your injuries were pre-existing, or perhaps resulted due to an unrelated incident and not the car wreck itself.
Contact Insurance Right Away
Many people wait to contact their insurance companies about a car wreck, but we advise contacting them as soon as possible — within 24 hours of the collision at most.
Even if you were not at fault, your insurance company needs to know what happened in order to begin taking action on their end and seeking damages from the at-fault party. Take the insurance information from the other driver and provide it to your insurance company when filing your claim.
You will be contacted by an insurance claims adjuster, who will want to view your vehicle and speak with you about your injuries, what happened, and what may be done to gain compensation from the insurance representing the other driver.
Be sure to call your claims adjuster regularly for updates, and do your own research on the market value of your vehicle before taking any numbers the claims adjuster gives you at face value.
Do You Always Need an Attorney?
In some situations, you may not need legal representation in order to protect your interests. In the case of a minor fender bender in which the other party admits fault and insurance is able to gain your deserved compensation, no attorney may be required. However, especially in cases of large-scale damage or serious injury, it can be difficult to handle all of the work required to press your claim, the other drivers' insurance may deny their liability or eve become hostile, and even your own insurance company may either delay or outright deny you the compensation that you deserve.
In these cases, having legal representation prepared to fight for your individual rights is essential. An attorney will be able to gather the extensive documentation needed to prove what happened in a court of law, take depositions of those who witnessed the accident or its aftermath, represent your interests in court, engage in mediation with the insurance companies, and help you ensure that you have someone standing at your side if the situation grows adversarial.
In the case of insurance companies acting in bad faith and denying or delaying claims that should be processed, legal representation may help to resolve the issue to all parties' satisfaction.
Involved in a Collision Due to Texting and Driving?
Any car wreck can be disorienting, but it's even harder when there's reams of paperwork to deal with, evidence to gather, and a court case to prepare. At Bluestein Attorneys, our attorneys have experience with recovering due compensation after a motor vehicle accident, including those involving texting and driving, wrecks involving tractor trailers, motorcycle accidents, and more.