DISTRACTED DRIVING CAUSED BY HANDHELD DEVICES: SHOULD IT BE CONSIDERED RECKLESS BEHAVIOR UNDER THE LAW?

Distracted driving is a very real and very deadly menace to our society. It is probable that you have heard about horrific incidents, or may even have personal knowledge of an incident in which someone was texting and driving and was killed or killed someone else as a result. The true tragedy of  injury or death caused by texting and driving is that it could be avoided if drivers simply stop engaging in this dangerous behavior. Most people would agree that distracted driving is reckless behavior, in the ordinary sense of the word.  I think most people would also agree that it should be considered reckless behavior in the legal sense.

In Connecticut, punitive damages for personal injury or property damage related to traffic incidents are classified as "double or treble damages."  This means that if a claimant prevails on a punitive count that a judge or jury may choose to double or triple the award.  The relevant statute is Section 14-295 of the Connecticut General Statutes.  It reads in pertinent part as follows:

14-295 Double or treble damages for personal injury or property damage resulting from certain     traffic violations.

In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a factor in causing such injury, death or damage to property.

Some of the underlying referenced statutes that must be pleaded in order to bring a 14-295 recklessness claim are excessive speeding (14-218a and 14-219) and driving under the influence (14-227a).  What this means is that if one drives unreasonably fast or while intoxicated, they can be held liable for reckless driving, in addition to negligent driving (which can be equally devastating to the injured person). Connecticut explains recklessness in its Jury Instructions as follows:

Connecticut Civil Jury Instructions

3.4-2 Damages - Double or Treble

You should understand that the phrase deliberately or with reckless disregard involves conduct that is more than negligence.  It is conduct that indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.  It is conduct that tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

It should be noted that that if double or treble damages are awarded that the insurance carrier responsible for paying the award is not necessarily required to pay anything above the award for negligence. For example: if a jury finds for a plaintiff that a defendant is negligent and the cause of the plaintiff's injuries and awards the plaintiff $100,000, then $100,000 is all that the liability insurance carrier is required to pay. If that same jury found the defendant reckless and Section 14-295 applied, and doubled the $100,000 award to $200,000, the individual defendant is personally responsible for the additional $100,000. In reality, some insurance companies that choose not to settle a case and expose its client to personal financial consequences, pay the punitive award in order to avoid a bad faith claim.  However, some insurance companies refuse to pay the overage and leave its customer on the hook.

Legal wrangling over what entity may be responsible for paying damages should not effect how we decide what is right and wrong under the law.  We certainly should not ignore something that as a matter of public policy would be good for the community in that it may deter people from engaging in the very dangerous behavior of using handheld devices while operating a motor vehicle.  It should be noted that in Connecticut, it is already a violation of traffic law to use a handheld device while driving.  See Conn. Gen. Stat. Section 14-296aa.

The question for you is this:  Do you agree that texting and driving or any similar such use of a handheld device which causes distraction, should have a punitive aspect?

Read more about the dangers of texting while driving here: http://www.fcc.gov/guides/texting-while-driving

   

HEARTLAND OF CHARLESTON NURSING HOME: TRYING TO PUT A CAP ON DIGNITY

You get one life.  That's it. Just one. Answer this question: If you are lucky enough to make it to the golden years, do you want to be cared for, respected and ultimately die with your dignity still intact?  Or would you rather be left to suffer and waste away alone as if you were nothing?  Granted, the answer to that question is simple.  Imagine your mom being thrown out like trash, especially when you entrusted her to the care of others.  Unfortunately, Tom Douglas didn't have to imagine it.  His mom, Dorothy Douglas was killed by the nursing home which was entrusted with her care.  So, it shouldn't surprise anyone that a jury verdict of $91.5 million dollars was rendered in August of 2011 in the case of  Tom Douglas v. Manor Care, Inc. d/b/a Heartland of Charleston Nursing Home.  It should come as less of a surprise that the defendant-nursing home asked the trial judge to overturn the verdict, citing, among other things, that the award should be subject to the $500,000 cap that West Virginia imposes on medical malpractice cases.  Judge Paul Zakaib, Jr. of Kanawha County Circuit Court denied that request on Wednesday, April 10, 2013, finding that award was appropriate.

It also comes as no surprise that the defendant, a company that has a history of putting profits over people (according to Judge Zakaib, Jr.) would try to avoid paying for the grievous harm it caused and is appealing this case to the Supreme Court (of West Virginia).

Read the article "Judge denies new trial in $91.5 million nursing home verdict" posted in the WV Gazette on April 11, 2013 here:   http://www.wvgazette.com/News/201304110179