WHAT DO I DO IF I WAS HIT BY SOMEONE TEXTING WHILE DRIVING?

In New York, a distracted driver who causes an accident is responsible for the damages that they have caused. So what do you do if you or someone you care about are the unfortunate victim of a texting while driving accident?

There are several things that should be done as soon as possible following a distracted driving accident, both to protect yourself and to protect your family, and if these things are delayed, or do not happen, your situation becomes more difficult. 

Can you do all of these on your own, without a lawyer?  Maybe.  Should you?  Probably not, and we’ll explain why.

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1. Get appropriate medical treatment.  This should go without saying, but medical treatment should be the number one priority following an accident.

2. Obtain a copy of the police report.  This is critical, as in many cases it will have relevant information including the name, address and insurance information for the other driver; the names and contact information for any witnesses; whether the other driver was ticketed, etc.  

3. Contact witnesses to the accident and, if appropriate, secure written statements.  It is not enough to just say that the other driver caused an accident because they were texting, reading their phone or otherwise distracted.  You need to prove it, and one of the ways to do so is through eyewitness testimony.  But witnesses have short memories, and tend to forget things, which means that the more quickly you act to contact them and secure statements, the more accurate those statements will be.  You can do this on your own, but we have experience with this and investigators who will track down tough to find witnesses.

4. Notify the prosecutor of your injuries before a plea.  If the other driver was ticketed for illegal distracted driving, they will likely hire a lawyer and try to plea the ticket down to something else.  You need to notify the prosecutor that you or your passenger were hurt as a result of the accident, because this will very likely impact the decision of the prosecutor to accept a plea to a reduced charge.  Once the plea agreement is reached it is too late.

5. Find out if there were other accidents at the intersection or area of the roadway where the accident occurred.  In Saratoga Springs, we know that there are multiple specifically dangerous intersections.  Intersections, for example, where a driver has a turn signal at the same time as a pedestrian walk signal.  This can create confusion, and lead to accidents.  We know this in particular because we have requested and obtained records of accidents at intersections in Saratoga Springs where pedestrians have been hit.  You will want to make every effort to find this information if it is available. 

6. Obtain a copy of any certificates of disposition related to the accident.  If the other driver pleads guilty to any of the charges related to distracted driving, or texting while driving, this can very likely be used in a case against that driver for your injuries.  You will need to track this down so that you can use it.

7. Deal with the insurance company in a way that is beneficial to your case.  You may very well hear from the insurance company for the other driver shortly after the accident, often while you are recovering.  These are critical moments, and the manner of the interactions can set the tone for how your situation is resolved, and can hurt you if you are not careful.  

These are just some of the many things that need to be done following a distracted driving accident to properly protect yourself and your family.  These accidents are often life altering, and while in some situations you can deal with them on your own, you will be operating in an arena with other people who are more experienced and who are not always on your side (the insurance company, for example).  If you have questions, or are concerned about doing it on your own, contact us today.

In addition, here are some common questions and answers from accidents that were caused by texting while driving.  

Is texting while driving illegal in New York State?

Yes.  New York Vehicle and Traffic law prohibits the use of an electronic device while you drive, including:

1. talking on a handheld mobile device
2. composing, sending, reading, accessing, browsing electronic data such as email, text messages or websites;
3. viewing, taking or transmitting photos or images;
4. playing games on cell phones while driving.

New York has a minimum/maximum fine of $50/$200 for the first offense under the law, and the fines go up to $450 for multiple offenses.  The violation also carries 5 driver violation points.

For probationary and juniors with a class DJ or MJ license or permit the first conviction will result in a 120-day suspension, and a second conviction within six months will result in a minimum one year revocation.

How does the criminal or traffic case relate to a personal injury claim or lawsuit?

 The short answer is that a conviction or guilty plea for texting while driving may be admissible as proof of liability in a subsequent personal injury lawsuit. 

This means that if you are hit by a driver who is texting while driving, and are injured, you may be able to use that driver’s guilty plea to help you in a lawsuit.  Practically, some courts allow violators (particularly first time offenders) to plea to a reduced charge, however some courts are becoming less and less tolerant of this dangerous behavior and are requiring either guilty pleas or trials.  

On some occasions the victim in an automobile accident is contacted by the prosecutor before the prosecutor offers a plea deal to the criminal defendant.  If you are injured by a distracted driver who was texting while driving you must let the prosecutor know this, and ask that the driver not be offered a reduced plea. 

Can I obtain the cell phone records of the driver?

Cellular phone records can be extremely helpful following a car accident involving distracted driving or texting and driving. 

Once a lawsuit has been started the attorney for the plaintiff can do two things: 1) send a demand to the driver for printouts of all text messages and call logs from the date of the accident as well as any and all records from the cell phone carrier; and 2) serve a subpoena on the cell phone carrier for copies of records from the date of the injury.    

Another tactic that we often employ when representing a car accident victim is sending a preservation letter to the driver of the other vehicle.  This letter demands that the driver preserve all cellular phones, including call logs and text messages, from the date of the accident forward.  This is helpful because if the driver later deletes the message that he was sending or reading at the time of the accident, you can make an argument that he is guilty of spoliation – or destroying evidence – which can go a significant way in helping you prove your case.  Timing, of course, is important, so it becomes critical to contact an attorney quickly following an accident.

Will insurance cover the injuries?

 One very common question from victims of texting while driving accidents is whether the insurance company for the other driver will pay for the injuries. 

The short answer is that yes, most often the liability insurance company for the other driver will still cover the claim for injuries even though its insured (the offender) was violating the law when he struck you or your vehicle.  Even though texting while driving is illegal, so is speeding and insurance companies nearly always cover claims in those circumstances as well. 

The important thing about insurance for the other driver is that there is enough coverage to make you whole.  Victims of texting while driving car accidents often suffer very severe injuries, and in some cases the insurance coverage is simply insufficient.  There are a couple of things to be aware of here:  1) it is critical to determine the available insurance coverage early on, and determine whether the other driver has any excess or umbrella coverage in addition to the primary liability insurance coverage; 2) it is just as important to notify your own insurance company that you may have a claim for SUM benefits under your own insurance policy.

SUM benefits are insurance benefits to help supplement the other driver’s insurance coverage where you have been severely injury after a car accident.  SUM stands for Supplemental Uninsured/Underinsured Motorist, and it means just that – if the driver who hit you while texting is “underinsured” – meaning that they do not have sufficient insurance coverage to make you whole – your policy may kick in to pay you more.  SUM coverage is required in New York; however, the minimum required coverage is low so it is important to know what coverage is out there early on.

Who will pay for my medical bills if I’m hurt because of someone texting while driving?

Following an accident, the first thing you are and should be concerned about it ensuring that you or your loved one gets appropriate medical treatment.  Generally speaking, medical bills may be paid in one of a few ways: 1) through the New York State No Fault insurance system, where your carrier will pay for medicals and out of pocket losses up to $50,000; 2) through your own medical insurance company; or 3) through the other driver’s insurance company. 

When should I contact a lawyer?

Sooner than you think.  The reality is that there are a number of decisions that you will make in the days and weeks after an accident that can have significant implications down the road; including decisions about medical treatment, bills, insurance, etc.  You will almost certainly receive a call from the insurance company for the other driver, and may receive some pressure to resolve the case quickly.  This could be a good idea, but it could also be a really terrible idea.  

There is absolutely no harm in reaching out to a lawyer.  We speak with and represent people in your situation every day, and would be happy to chat.  If you have questions, contact us today.

Some additional stats:

Nearly everyone who owns a cellular phone has been guilty at one point or another of sending or receiving a text message while driving a motor vehicle.  Consider the following statistics from the CDC:

• Each day in the US more than 8 people are killed in crashes involving a distracted driver.
• Each day in the US 1,161 people are injured in crashes involving a distracted driver
• At 55mph, the average text takes your eyes off of the road long enough to travel the distance of an entire football field.

Yet, despite the public awareness of the risks of distracted driving – and in particular texting while driving – the problem is still ubiquitous.  Walk down the sidewalk and watch people in their cars for 30 minutes, and you will see the problem first hand.  As parents of young children, we appreciate the risk and are frightened by it.

AT D’ORAZIO PETERSON WE ARE DEDICATED TO REDUCING THE NUMBER OF ACCIDENTS RELATED TO DISTRACTED DRIVING, AND TO HELPING THOSE WHO HAVE BEEN HURT BECAUSE OF A DISTRACTED DRIVING ACCIDENT.

In fact, you may see our stickers around the Capital Region, encouraging drivers to Ignore the Phone.  If you’d like one for yourself, simply click on the image below.