It's the Law

These are a series of articles by Dallas attorney Carl David Adams, who recently celebrated 34 years of private law practice in Texas.

Adams received his JD from Baylor University School of Law cum laude (where he was first in his class) in August of 1975 and was licensed by the Supreme Court of Texas in
October 1975. Board Certified in Civil Trial Law, Adams handles a wide range of civil legal issues, at trial and on appeal, for clients throughout Texas.

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A DEADLY CONVENIENCE
By Carl David Adams © *
February 1, 2010

The Cell Phone: A wonderful new tool

Perhaps no single modern electronic device has exploded upon the scene and quickly become as widely embraced as a necessary part of daily life as has the cell phone. Virtually all movers and shakers in our society today appear to be all but unable to function (at work or play) without an attractive, state-of-the-art cell phone (often with dazzling new features such as cameras, text messaging, internet access and other features to add to the range of functions of the device) within quick reach at all times.
         
These boundless wonders of technology are attractive and indeed fantastic in range and scope, and the ability of mankind to make use of them for its betterment and entertainment appears limited only by society's imagination.

Cell phone: A new distraction

This wonder tool (the cell phone) has, however, also found its way into numerous places where its use creates and/or exacerbates problems never envisioned before:

• in movies, theaters and musical performances-
• in courtrooms and public meetings-
• in classrooms and schools-

Often the abuse and/or misuse of a cell phone by a single individual (oftentimes innocently) disrupts the occasion for many others and distracts from the event or the public purposes of the event in ways earlier generations were never required to deal with or endure.

Cell phone drivers: A deadly distraction

Yet perhaps nowhere is the potentially deadly conflict between the individual’s use of the convenience of the cell phone and the rights and public safety of the general public more clearly visible than in the escalating and dangerous use of cell phones by distracted drivers on the public roads, streets and highways of our land. 

One July 2005 study published in the British Medical Journal (funded by the Insurance Institute for Highway Safety) concluded that drivers who use cell phones as they drive (even hands-free models) were four (4) times more likely to be involved in a serious accident. (Footnote 1)

Metzger, at 1079.

         
The third edition of the learned treatise of Professor William L. Prosser of Hastings College of Law, first published in 1941, entitled Handbook of the Law of Torts, explains this common law duty as follows:
….whenever the automobile driver should, as a reasonable man, foresee that his conduct will involve an unreasonable risk of harm to other drivers or to pedestrians, he is then under a duty to them to exercise the care of a reasonable man as to what he does or does not do.

Prosser, Law of Torts (3rd Ed.), § 53, Page 326 (1971).

          While oftentimes misunderstood (and sometimes maligned), the civil law of tort liability was created centuries ago as an organized societies’ way of attempting to protect the rights and safety of persons against wrongful acts of others causing them damage. The common law of negligence and the duty of reasonable care it imposes for the general protection of the safety of the public is intended, as a matter of established public policy, to provide redress from and recompense for wrongful actions (sometimes referred to as unlawful conduct) that affect, diminish or destroy some legal interest (i.e. the lives and limbs) of the complaining party. (Footnote 12)
The common law accomplishes that purpose by imposing accountability (i.e. civil liability in the form of an adverse judgment) on the person whose careless and unreasonable conduct has negligently caused damage to others.

The use of the common law of torts to protect the interests and safety of members of the public by imposing such accountability is not new. It has been around for several hundred years. The important function and ability of the law of torts to deal with new and changing conditions in society is stated succinctly in the Texas legal encyclopedia TEXAS JURISPRUDENCE (3rd Edition), "Tort Liability," §3, pages 276-277 (1999), as follows:

The common law of torts, including the concept of duty, must evolve in light of the changing conditions and circumstances of society. Changing social conditions lead constantly to the recognition of new duties. New knowledge and new scientific research are sound grounds for pronouncing enlightened, pragmatic duties in tort law. These pronouncements have been historically and traditionally the proper province of the judicial branch. With judicial restraint and full respect for precedent, the judiciary is within its proper ambit to simply recognize dramatically changed conditions and scientifically sound new consensus of knowledge. Vastly increasing complexities in relationships between and among human beings, coupled with entire new fields of scientific knowledge and empirical wisdom, importune the judiciary to reexamine, and to conservatively and prudently implant, correlative duties. Thus, courts have brought about reasonable changes in the common law as the need has arisen in a changing society. No better general statement can be made and that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

The existing common law of negligence in Texas, therefore, needs no statute, ordinance or guidance from the legislative branch of the Texas Government to offer protection for the lives and safety of those Texas citizens who may be killed, maimed or disabled by reason of the new dangers created on Texas roads and highways by the unreasonable distractions created by cell phone use by drivers.

If a Texas judge in a civil court determines that evidence of the use of a cell phone by one of the driver's as perhaps one of the factors causing a damaging accident is relevant and material to the issue (a conclusion made highly likely by the studies mentioned above), the recognized standard of the duty of reasonable care- the bedrock of a complaint sounding in common law negligence- will require the Texas jurors hearing the case to be asked if such dangerous conduct falls below that simple and yet vital standard of reasonable care under the circumstances of the case (i.e. whether an reasonable person would have refrained from talking on their cell phone under the circumstances.)

Given the sobering human risks and dangers, and the negligible benefits involved, reasonable observers and scientist are quickly coming to the inescapable conclusion that use of the new wonder tool that is the cell phone can easily become, when combined with the oftentimes dynamic physical and mental demands of driving a vehicle on the busy streets and highways of Texas, a deadly convenience. 

Can the verdicts of Texas jurors in civil negligence claims be far behind?

* Carl David Adams is a solo practitioner in Dallas, Texas, where he has handled civil trial and appellate matters since 1975. He has been Board Certified by the Texas Board of Legal Specialization in Civil Trial Law since 1990. He was the top law graduate in his August 1975 Class at Baylor University School of Law and is a former Notes and Comments Editor of the Baylor Law Review.