Illinois Wrongful Death Suit Spotlights Complicated Text Messaging Laws

Posted December 1, 2011 in Criminal Law Driving & Motor Vehicles by

A lawsuit in Illinois highlights the complexities of the growing number of laws governing the use of cell phones while driving.

  • Driver sued for texting immediately prior to fatal accident
  • Illinois law bars “electronic messaging” while driving, but not calls
  • “Distracted driving” rules vary by state; new laws appearing every year

 

The National Safety Council estimates cell calls or texting are responsible for 1.3 million crashes, or 23 percent of all crashes, per year.

In the Illinois case, Kevin McNamara says his wife was killed by a truck driver who rolled through a stop sign in Coral Township in September while sending a text message. Now McNamara is suing driver Kennth Englert of Alexander Lumber Co. for negligence and wrongful death.

As reported by the Courthouse News Service, McNamara claims that Englert

“failed to stop his vehicle for a stop sign,” drove “at a speed greater than reasonable,” and killed his wife by smashing a 2008 Ford Ranger pickup truck into her 2004 Chevy “while using a telephone and/or texting.”

A law has been in effect in Illinois since January 2010 banning text messaging and web surfing while driving. However, while Englert was charged with failing to yield at an intersection, he was not cited for a texting violation. He was sentenced November 2 to $551 in fines, 120 days supervision and four hours of traffic safety school.

McNamara’s lawyer, Mark Dinos of Chicago firm Morse Bolduc, declined to comment on the details of the lawsuit but noted “there is some evidence of use of the telephone.

Mike Byrne

Even though the criminal charges didn’t account for a texting violation, lawyers could find other ways to prove their case in civil court. “You’d have to depose the truck driver and get him to admit he was texting while driving, and/or subpoena the phone records,” speculates Michael Byrne, an Illinois attorney with over 25 years of experience trying traffic cases.

Laws Banning Phone Use Varied, Increasing

Illinois is one of 35 states that have banned text messaging while driving, all in the last five years. “There’s a lot of publicity about the law,” Byrne says. “I know they do enforce it.”

  • Nine states as well as Washington, D.C. ban handheld cellphone use while driving outright.
  • Thirty states plus D.C. ban all phone usage including using hands-free devices for novice drivers.
  • Thirty-five states plus D.C. ban text messaging while driving.

 

Most states with phone bans treat the practice as a primary offense—you can be pulled over just for using your phone. In a few states it is a secondary offense, only enforced in conjunction with another traffic violation. For information about your state, consult the chart at the Governor’s Highway Safety Association website.

It can be complicated keeping track of all the various laws in different states and localities. Three other state-wide laws in Illinois govern use of phones in a vehicle: drivers under the age of 19, school bus operators transporting children and anyone in a school zone are all banned from making calls while behind the wheel.

There is no blanket law banning talking on a cell phone while driving, but the state allows local areas to define their own rules. Chicago outlawed the practice in 2005; according to the Chicago Tribune, police issued 23,292 tickets in 2010. This year, the city went a step further, passing a law in October banning texting and talking while biking.

Other states and cities around the nation have enacted their own laws for distracted driving. Pennsylvania, for example, passed a law this month allowing drivers to make calls but not send text messages. The Pennsylvania law actually superseded a stricter Philadelphia law that banned all handheld phone usage while driving.

The White House is getting on board, too. In 2009, President Obama banned federal employees from texting while driving government vehicles, or while driving any vehicle on government business. Commercial truckers and bus drivers nationwide were prohibited from texting last year, and in September the National Transportation Safety Board recommend all cell use be banned for commercial drivers.

Do Texting Bans Reduce Crashes?

The laws aren’t without controversy. Pennsylvania police have complained texting bans are difficult to enforce because a texting driver might claim to have been entering a number for a voice call. And a 2010 study by the Highway Loss Data Institute actually found a slight increase in crashes after texting bans went into effect. HLDI President Adrian Lund speculates that the increase might be caused by drivers holding the phone below the window level while texting, out of sight from the police but also diverting eyes further from the road.

“Finding no reduction in crashes, or even a small increase, doesn’t mean it’s safe to text and drive, though,” Lund said in a press release. “There’s a crash risk associated with doing this. It’s just that bans aren’t reducing this crash risk.”

 

Reported by Aaron Kase for Lawyers.com.

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