Cell Phone Laws and Trends in Various Jurisdictions: PART II
by Robert J. Aldrich III and Gary N. Stewart
The first part of this article on cell phone laws was published in the Transportation Law Update, Volume 17, Number 2.
On December 2, 2011, the Federal Motor Carrier Safety Administration (“FMCSA”) published a rule restricting the use of hand-held cell phones by drivers of commercial motor vehicles (“CMV”). The rule took effect on January 3, 2012. See 49 CFR § 392.82; see also 76 FR 75470.
Can the use of a hand-held cell phone by a CMV driver be considered punitive damages?
In most jurisdictions, the general rule is that punitive damages are appropriate when an individual’s actions are of such an outrageous or egregious nature as to demonstrate intentional, willful, wanton or reckless conduct. Wanton misconduct or reckless indifference means that the individual has intentionally acted unreasonably and in disregard of a risk known to him or her, and such risk is so great as to make it highly probable that harm would follow.
We believe that a colorable argument could be made that a CMV driver’s use of a hand-held cell phone or violation of the FMCSA rule gives rise to a punitive-damages claim. However, for illustrative purposes, following are outlines of two cases in which courts have rejected claims for punitive damages due to cell phone use.
Moreover, these decisions were either issued before the new FMCSA rule or did not involve CMV drivers. We believe that if these courts and similar courts were to face the same claims pursuant to current hand-held cell phone laws, they might consider hand-held cell phone use by CMV drivers to be reckless, thus subjecting CMV drivers and their companies to punitive-damages claims.
For example, in Sipler v. Trans Am Trucking, Inc., 2010 U.S. Dist. LEXIS 126047 at *2-5, 2:10-CV-03550-DRD (D.N.J. Nov. 30, 2010), plaintiffs brought a punitive-damages claim against defendants, alleging that the defendant CMV driver was reckless, careless, and negligent for talking on his cell phone at the time of the collision. Defendants moved for summary judgment, arguing that the CMV driver did not act with actual malice or wanton and willful disregard of the plaintiffs’ safety by using a cell phone while driving.
The United States District Court for the District of New Jersey found no justification for awarding punitive damages to the plaintiffs. The Court reasoned that the CMV driver “did not violate any New Jersey motor vehicle laws or federal motor carrier safety regulations” by talking on a cell phone at the time of the collision, nor did he act with actual malice or wanton and willful disregard of the plaintiffs’ safety.
We note that this case was decided on November 30, 2010. Since that time, the FMCSA has issued the rule banning the use of hand-held cell phones by CMV drivers. Further, New Jersey has since amended their traffic laws to prohibit the use of hand-held cell phones by all drivers.
In addition, on July 18, 2012, the New Jersey Legislature enacted a law which states, “Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle … may give rise to an inference that the defendant was driving recklessly.” N.J. Stat. § 2C:12-1(c)(1).
Applying Sipler’s facts to current cell phone laws, it is likely that the United States District Court for the District of New Jersey would allow a plaintiff’s punitive damages claim because a CMV driver talking on a hand-held cell phone today would be in violation of both New Jersey motor vehicle laws and FMCSA regulations.
In the Pennsylvania case of Pietrulewicz v. Gil, No. 2014-C-0826 (Pa. Lehigh Cty. C.P. June 6, 2014), the use of a cell phone while driving did not rise to the level of recklessness or support the corresponding claims for punitive damages. Plaintiff was operating a motorcycle when a vehicle driven by defendant turned in front of him and collided with his motorcycle. Defendant was talking on her cell phone at the time of the accident.
The sole issue before the Court was whether plaintiff’s allegations of recklessness and his demand for punitive damages were supported by the facts pled in his Complaint. The Court relied on Piester v. Hickey, decided in 2012, where that court ruled that punitive damages were not recoverable in Pennsylvania where the only allegation in support is that the defendant used a cell phone.
The Pietrulewicz Court ultimately concluded that defendant’s use of her cell phone did not give rise to an evil motive or conscious indifference to plaintiff’s safety and, thus, did not constitute reckless conduct sufficient to support plaintiff’s punitive-damages claim.
Pietrulewicz was decided in 2014, and it and the cases it relied on only involved non-CMV drivers. In Pennsylvania, non-CMV drivers are allowed to use hand-held cell phones while driving.
However, the FMCSA rule applies in Pennsylvania, and Pennsylvania has recently amended the CMV provisions of its Motor Vehicle Code to specifically include the FMCSA rule. Thus, we suspect that federal and state courts in Pennsylvania would consider a punitive-damages claim against CMV drivers and their companies for using hand-held cell phones and violating the Federal Rule.
GLOBAL POSITIONING SYSTEMS (“GPS”)
While the use of GPS is not prohibited under the FMCSA rules against hand-held cell phones and texting while driving, a similar distracted-driving analysis could be applied to GPS units.
For example, in Steven Rockwell v. Glenn Knott and New Prime, Inc., C.C.P. No: 12-CV-1114 (2013), Judge Terrance R. Nealon of the Court of Common Pleas of Lackawanna County (Scranton), Pennsylvania, issued a lengthy opinion granting our Motion for Partial Summary Judgment and dismissing claims of punitive damages against a driver and his employer for the use of a handheld GPS at an intersectional accident.
In the opinion, Judge Nealon noted that “a motorist arguably may engage in recklessly indifferent conduct, and thereby be potentially liable for punitive damages, if he completely diverts his or her attention from the roadway to observe a low positioned GPS device and nevertheless continues to travel on the roadway until he collides with another vehicle.”
Judge Nealon further noted that “if the GPS device is affixed to the dashboard or windshield of a vehicle, such that the operator maintains peripheral vision of the roadway, a motorist’s split-second glimpse at its screen is akin to a momentary glance at a speedometer or side or rearview mirror, and does not constitute reckless indifference or wanton misconduct. However, if a driver completely diverts his or her attention from the roadway to view a GPS device which is not located on the dashboard or windshield, and continues to travel in his or her vehicle without any view of the roadway or other traffic, he may be deemed reckless.”
While this case was ultimately decided in Rawle & Henderson LLP’s favor, Judge Nealon’s analysis demonstrates that plaintiffs can make colorable arguments for negligence and punitive damages by claiming driver distraction caused by inputting, selecting, or reading GPS information.
Therefore, we recommend that CMV drivers type in all relevant information and activate their GPS unit before they begin their trip. CMV drivers may also utilize a voice-activated GPS unit, or pull to the side of the roadway when holding, reading, or typing information into a GPS unit. We also recommend that CMV drivers mount GPS units in such a manner that does not divert the driver’s attention from the roadway.
Distracted driving has been a “hot” topic in the last few years, and we suggest that all drivers be encouraged to avoid not only cell phone use but also any activities that can be construed or interpreted as having caused a “distraction.” At 60 mph, a motor vehicle travels 88 feet in one second. How long does it take to look away, reach, and pick up one’s coffee?
Drive when you are on the road and talk, text, eat, and put your make-up on when you are parked or stopped off of the travel portion of the roadway.
Gary N. Stewart is a partner in the Commercial Motor Vehicle Section in our Harrisburg office. Gary is admitted to practice in Pennsylvania, New Jersey, Massachusetts, Connecticut, Vermont and Rhode Island as well as before the U.S. District Courts for the Eastern, Middle and Western Districts of Pennsylvania, the District of New Jersey, the District of Massachusetts, the District of Rhode Island, the District of Connecticut and the U.S. Court of Appeals for the First and Third Circuits. He graduated magna cum laude from Widener University School of Law (Harrisburg campus) in 1992. Gary was the recipient of the James C. Crumlish Jr. Award for Excellence in Scholarship and Administrative Law. He received his undergraduate degree from the U. S. Merchant Marine Academy at Kings Point, NY, and holds U. S. Coast Guard professional licenses as Master of Oceans, Steam or Motor Vessels up to 1600 gross tons as well as Chief Officer, unlimited tonnage, all oceans. Gary served as the law clerk for the Honorable Rochelle Friedman, Commonwealth Court of Pennsylvania in Harrisburg. He has been selected by his peers, as a Transportation/Maritime Pennsylvania Super Lawyer in 2016, 2012, 2011, 2010, 2009 and 2007. It is an honor reserved for the top 5% of all Pennsylvania lawyers.
Gary can be reached at (717) 234-7730 • email@example.com
Robert J. Aldrich III, an associate in our Harrisburg office, concentrates his practice in the area of commercial motor vehicle defense. Robert earned his J.D., magna cum laude, from Western Michigan University Cooley Law School in 2013. He served as Senior Associate Editor of the Law Review and the Journal of Practical and Clinical Law. While attending law school, Robert served as a judicial intern for the U.S. Court of Appeals for the Sixth Circuit, the Michigan Court of Appeals, and the Supreme Court of Pennsylvania. He also served as a law clerk for a private law firm in Okemos, Michigan. Robert earned a B.S. degree in Spanish from the Pennsylvania State University in 2009. After law school, he served as a judicial law clerk to the Honorable J. Michael Eakin, Supreme Court of Pennsylvania, from January 2014 through March 2015. He also served as a judicial law clerk to the Honorable Margherita Patti Worthington, Monroe County Court of Common Pleas, Stroudsburg, Pennsylvania, from September through December 2013. Robert is admitted to practice in Pennsylvania, as well as the U.S. District Court for the Middle District of Pennsylvania.
Robert can be reached at (717) 234-7703 • firstname.lastname@example.org