A driver who causes an accident because they were distracted while driving, such as using their cell phone, is unlikely to admit it. If they do, they will likely try to justify it. In many cases, though, they will outright deny they were distracted.
In this blog, our McAllen and San Antonio personal injury law firm outlines the common defenses that can make it more challenging to prove your case.
Outright Denial
If you suspect a driver was distracted when they caused your accident — such as you saw them looking down as they crashed into your vehicle — they might simply deny it. When it is your word against another driver’s, it’s critical to gather supporting evidence, whether cell phone records, an accident reconstruction report, the police report for your crash, or eyewitness testimony.
Blaming a Passenger
A driver might claim a passenger in their vehicle is responsible if they are traveling with others. For example, if you suspect a driver was texting and have evidence to support it, they might claim a passenger is responsible for their incriminating phone logs.
Alternatively, a driver might claim a passenger was acting aggressively or excitedly and distracting them from the road, whether shouting, moving around, or waving their arms in front of a motorist.
Either can be a difficult scenario — a passenger might lie for the driver to protect them, especially if they are a family member or close friend. Eyewitness testimony can help cast doubt on the passenger’s story, especially if multiple witnesses saw the driver was not paying attention.
Your personal injury attorney can help you investigate a witness’s story. For example, if cell phone records show a messenger app was active during the crash or that a text message was read moments before impact, and only after evidence comes to light does the other driver explain that somebody else was using their cell phone, it can be enough to cast doubt on their story.
Your attorney can also depose a passenger who may be covering for a driver. A deposition is a sworn statement under oath — similar to testifying in court — traditionally held in an attorney’s office. As depositions are sworn statements, witnesses must tell the truth and are subject to contempt of court penalties if they are found to be lying,
You might be able to prove a driver was negligent even if they claim someone else was using their phone during the crash. If you were driving lawfully and another driver strikes you suddenly from behind or does not see you, but the other driver denies they were negligent, the question stands: how did the accident happen? CCTV footage of eyewitness testimony showing that the driver failed to brake, for example, can suggest inattention and cement your personal injury claim.
Comparative Negligence
A driver might try to play down their role in causing the accident by arguing that you are also responsible. Texas follows the modified comparative negligence law, which prevents individuals from recovering compensation if they are found to be more than 50% at fault.
Whether or not the driver denies they were distracted, they might claim that you were speeding, not paying attention, or otherwise acting negligently. If you did, and they can prove it, it can affect your entitlement to compensation.
Emergency Situations
Specifically with cell phone use, a driver might not deny using their phone immediately before an accident. Instead, they might try to justify it by claiming they had an emergency. Cell phone records and the crash report are vital for either confirming or refuting a driver’s version of events. If there was a genuine emergency, there would likely be evidence of the lead-up to this on the driver’s cell phone, and their first instinct should be to explain the situation to the attending police officer, not try to hide it.
Areas in Greater San Antonio We Serve
A Note on Cell Phone Use and Its Impact on a Defense to Texting While Driving
Cell phone use deserves special mention when considering defenses to distracted driving, as it’s one of the most common forms of driver distraction, and there are specific laws governing its use.
Texting is completely illegal, and some cities ban all cellphone use while behind the wheel. Phone use is also banned in certain situations, such as when driving school zones or operating a school bus with minors onboard, or if a driver is under 18. In other cities, restricted use may be permitted, such as accepting a phone call using hands-free technology. However, drivers are strongly encouraged to pull over first, as talking on the phone, updating a driver navigation system, or even reaching to change the radio station can take your concentration off the road long enough for an accident to happen.
Why is this important when it comes to defending against distracted driving?
The answer lies in the elements you must prove to successfully claim compensation.
To recover your losses, you must prove the at-fault party has been negligent in causing your injuries. This involves showing:
- The at-fault party owed you a duty of care.
- The at-fault party breached that duty through negligence or recklessness.
- The breach of duty caused the accident.
- You suffered damages because of the accident.
But Texas law adopts a legal doctrine called negligence per se, which satisfies the first two elements you must prove. Negligence per se applies when an individual has broken a law designed to keep you safe, and driving while texting is an example of this in action.
Driving while texting is a misdemeanor. If a driver gets charged with this offense, they face a fine of up to $99 for the first offense and up to $200 for subsequent offenses. If they cause serious injury or death, the penalties are even more severe. Any conviction of texting while driving for a driver — even if it results in only a fine — will result in a criminal record, and too many traffic violations can cause a license suspension.
Because this is against the law, if someone causes an accident while committing the offense, it automatically implies that they owed a duty of care (to drive safely) and breached that duty (by driving while texting). In one respect, this can make it easier to recover compensation because you no longer have to gather evidence proving negligence. All you need to do is show that they caused the accident and that you were injured, which you can often prove with a police report, photographs, witness testimony, and medical records.
However, because there are potentially severe penalties attached to driving while texting, an at-fault driver might have even more incentive to deny or defend against those charges.
What Should You Do If You Have Been Injured in an Accident by a Distracted Driver?
If you’re in an accident caused by a driver you suspect was distracted, your actions immediately after the crash can make a big difference in a compensation claim.
Aim to take as many of the following steps as possible, as long as it is safe.
Ensure Safety
Your priority should be to ensure your and your passengers’ safety. Move to a safe location if possible, but do not stray too far from the accident scene. You must call 911 if anyone — including other drivers or pedestrians — is hurt or killed or if there is significant vehicle damage.
Gather Evidence
Car accident evidence degrades quickly. Road conditions change, and scenes are cleared as fast as possible to reopen the road. You should take photos of the scene while you’re able, as well as your injuries and any vehicle damage. You can read our guide to accident scene photography for tips on documenting the best evidence for your claim.
You should also record the contact information of witnesses who can corroborate your account of the crash. Witness testimony is not the most reliable evidence — a statement from a witness saying they saw the driver with their head down will not stand up to scrutiny on its own — but when it’s supported by additional evidence, it can swing the scales in your favor.
Cooperate with Law Enforcement
When the police arrive on the scene, it’s crucial to answer all their questions and cooperate with their investigation. Law enforcement will compile their findings into a crash report, which can be critical evidence for your claim. If you suspect a driver was texting, for example, make sure you explicitly tell the attending officer. If the police report cites “texting while driving” or “driver distraction” as a contributing factor to the accident, you have a much stronger chance of recovering compensation.
Don’t forget to also tell the police about any injuries you have — especially if they’re hidden. You must prove your injuries to recover compensation for your pain and suffering and the medical care you need to treat them, so having a record in the crash report further solidifies your claim.
Seek Medical Attention
In addition to telling the police about your injuries, you should also get a medical evaluation. You should seek medical attention even if you feel fine. Too many injury victims skip this step because they are worried about paying for treatment, but our Texas accident attorney can arrange a letter of protection to delay payment or help you negotiate a payment plan. Seeking treatment early on prevents the other side from claiming your injuries did not occur during the crash, which can severely limit the compensation you’re entitled to and leave you with medical bills your payout will not cover.
Consult a Personal Injury Lawyer
Contact a personal injury lawyer as soon as possible to discuss your case. Our personal injury lawyer in Texas offers a free case review so you can see if you have a case and explore your options and next steps. Do not forget to mention to your attorney that you suspect the person who caused your accident was distracted while driving — we can track witnesses who can provide testimony or file a motion for the driver’s cell phone records to provide evidence for your claim.
Record Everything
Wherever you are in the process, you should retain copies of any relevant documents and record everything related to your accident. Your attorney can advise on what might be pertinent to your case, which may include:
- Medical bills.
- Quotes for repairing vehicle damage.
- Information concerning your medical appointments, including when and where they happened and what was said or prescribed.
- Wage slips proving your income if you cannot work.
- Communications with insurance adjusters, law enforcement, or other parties.
It can also be helpful to maintain a personal injury journal or pain diary, where you log your pain levels each day, note activities your injuries limit or prevent you from doing, and record notes of conversations with your doctor or insurance company. While this information will not necessarily contribute to proving a driver was texting during your accident, it can provide a record of how your injuries impact your life.
We often forget these details as time passes, but it could make the difference between getting compensation for only the injuries you can remember and securing a more substantial payout for all your losses — such as the loss of enjoyment you’ve suffered because you cannot enjoy a regular hobby or the emotional rollercoaster you endure when your symptoms improve and later worsen.
| Download our free pain journal template for guidance on what information to record as you adapt to and recover from your injuries. |
Inattention is a dangerous practice that has severe consequences. Understanding the common defenses to driver distraction and what you can do to prove your case puts you in a strong position to recover the compensation you’re owed.
Our auto accident lawyer in McAllen and San Antonio is available 24/7, so you can always speak to an attorney if you or a loved one is injured in an accident caused by someone else’s negligence. We can advise you on what to do and determine if you have a personal injury claim.
We provide five-star-rated personal injury services in English and Spanish and serve the entire Rio Grande Valley and Greater San Antonio, from New Braunfels to Harlingen.
You don’t pay fees until we win. Call 855-LAW-NINJA to speak to our experienced McAllen and San Antonio car accident lawyer today.
References
Texas Civil Practice and Remedies Code § 33.001 establishes Texas’s modified comparative fault system and the fault cap preventing claimants from recovering compensation.
Texas Transportation Code § 545.4251, effective from September 1, 2017, makes it illegal for drivers to read, write, or send electronic messages while operating a motor vehicle.
Texas Transportation Code § 545.425 governs the use of cell phones in school zones or when the driver is operating a bus.
Texas Transportation Code § 545.424 prohibits the use of a handheld device for drivers aged under 18.
Texas Transportation Code § 545.4251 outlines the criminal penalties for texting while driving; a misdemeanor offense punishable by a $25-$99 fine for a first offense or $100-$200 for subsequent offenses (Subsection (e)), and a Class A misdemeanor punishable by a fine up to $4,000 and up to one year in jail if the defendant caused death or serious bodily injury to another (Subsection (f)).
Texas Transportation Code § 521.292 establishes when the Texas Department of Transportation can suspend a driver’s license, including if they have four or more moving violation convictions in 12 months (§ 521.292 (b)), are responsible for a collision causing serious personal injury or property damage (§ 521.292(a)(7)), or are under 18 and have two or more moving violation convictions in 12 months (§ 521.292(a)(8)).
