Can use of a cell phone while driving give rise to a claim for punitive damages in automobile injury cases?
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In Georgia, the answer is a resounding “maybe”. To qualify for an award of punitive damages in Georgia, the defendant’s actions must show willful misconduct, malice, fraud, wantonness, oppression, or the entire want of care which would raise the presumption of conscious indifference to the consequences. For cases involving automobile collisions, the conduct at issue is rarely intentional. However, where the conduct shows a conscious indifference to the consequences, it can give rise to a claim for punitive damages. A simple violation of the rules of the road is not enough. However, a pattern of bad driving or serious violation can show conscious indifference. So far most of these cases involving car wrecks resulting from drunk driving or tractor trailers that habitually speed or habitually violate the hours of service regulations. A recent decision by the Georgia Court of Appeals indicated that the “proper” use of a cell phone device will not give rise to a claim for punitive damages. However, in that decision the Court of Appeals made it clear that the decision does not preclude an award of punitive damages in all cell phone cases and the Court expressly mentioned Georgia’s new statute outlawing texting or emailing while driving. One could properly conclude that texting while driving could give rise to a claim for punitive damages when the texting directly results in a car wreck. One could also properly conclude that due to the dangerous nature of 18 wheelers due to the size and weight of the vehicles that cell phone use in violation of company policies and DMV regulations could give rise to punitive damages in tractor trailer collision cases.
Posted by John P. Webb
John P. Webb
John Webb specializes in personal injury: car accidents, tractor trailer litigation, and has appeared as a guest commentator, providing legal opinions for CNN, Fox News and MSNBC. His office is in Stockbridge, Georgia.