The inside of a truck cab offers more electronics and gadgets than ever before. A trucker can monitor how his truck and engine are performing, GPS mapping to stay on the right route, email communications with his dispatcher, cell phone conversations with family, and perhaps a reckless few play a movie or surf the web while driving.

A recent study of driver distraction by Volvo concludes:

It is positive that the number of safety and information systems in modern vehicles is increasing. Taken individually, they offer many benefits as regards traffic safety and productivity, for instance, but the driver does risk being over-burdened by too much information. Especially bearing in mind that many drivers also have their mobile phones and perhaps also a GPS navigator in the vehicle. In order not to jeopardise traffic safety, we have developed solutions that allow all the systems to interact smoothly,

If you are driving 60 mph and take your eyes off the road for three seconds, you will drive the equivalent length of a football field without knowing what's going on around you. Therefore, it is perhaps not surprising that a major 2006 study, sponsored by National Highway Traffic Safety Administration and Virginia Tech, found that nearly 80% of crashes, and 65% of near-crashes, involved some form of driver inattention, such as cell phone use and drowsiness, within three seconds before the event.

Studies have confirmed our common sense observation that many drivers are distracted by talking on cell phones, sending text messages, reading the newspaper and even shaving while driving.

As a "seasoned" Georgia trial lawyer, I've seen considerable evolution of thinking about safety issues. When I was a young Assistant District Attorney, we occasionally prosecuted DUI cases but treated them lightly, still laughing at bad jokes about drunks. Then our consciousness was raised by news stories about carnage caused by drunk drivers. Judges, prosecutors and legislators rightly began to take drunk driving more seriously. The term "designated driver" was not in the vocabulary when I was in college, but it is assumed as a necessity in my kids' generation.

When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

Now we learn that the train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

States and cities across the country have begun to enact laws that ban text messaging and use of hand held cell phones while driving.

In auto and truck accident litigation, we have become diligent about discovery of cell phone and text messaging records. With heightened sophistication about electronic discovery, this will be an increasingly significant factor in lawsuits.

There are at least three potential uses of cell and text evidence:

1. The defendant's cell phone and text usage while driving may be considered as "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving, and perhaps “bad faith in the transaction” to support a claim for attorney fees and expenses of litigation under Georgia law.


2. The plaintiff's cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.


3. If the evidence reveals that a defendant driver was communicating with an employer or to a customer on the employer's business while driivng a personal vehicle, that may provide a missing link to the employer’s insurance coverage.