Motorcycle Accidents Caused by Driver Distraction

No road in America is immune from the scourge of distracted drivers. However, motorcyclists suffer a disproportionate impact. Many drivers already fail to cognitively register motorcyclists sharing the road with them, even when they don’t have a phone in their hand. This phenomenon, called unintentional blindness or cognitive distraction, is well-documented, noted in research across many disciplines, including psychology, biology, traffic safety research and government policy.

It all comes down to the fact that if people aren’t making a concerted effort to look for motorcycles, they won’t see them – even those directly in their line of sight. Add to the seemingly epidemic “need” for so many drivers to fire off a quick text message or make a call, and the results are deadly.

A study of hundreds of thousands of drivers by Cambridge Mobile Telematics concluded more thanchalf of all crashes involved smartphone distraction, with the average duration of distraction pre-crash about 135 seconds. That’s about the full length of Janis Joplin’s acoustic hit, “Mercedes Benz.” Distracted drivers are a particular threat to motorcyclists, who the NHTSA reports are 28 times more likely to be involved in fatal collisions than those in passenger cars.

Distraction among drivers isn’t limited to cell phones and texting, but it certainly has resulted in an exponential increase in the risks faced by all road users.

Other examples of distraction include:

• Texting
• Talking to passengers
• Interacting with pets or children
• Eating or drinking
• External vehicle distraction (i.e., being glued to the emergency response to a crash)
• Using an electronic communication device (i.e., email, social media, etc.)
• Adjusting the radio
• Grooming
• Smoking
• Daydreaming

The Massachusetts Safe Driving Law, MGL ch. 90, section 8M, bans the use of handheld mobile electronic devices by drivers and has been in place since 2010. Reporting an emergency is the only exception to the law. But even a proven violation is not necessarily conclusive proof of negligence, though it can be used as strong evidence. That is why our Boston motorcycle accident attorneys will always carefully explore the possibility of driver distraction as a factor in these collisions.

Some communities have their own anti-texting ordinances, which can be more restrictive than the state statute.

It’s important to point out that while it’s only hand-held cellphones targeted by Massachusetts law, no one should assume that means hands-free phones are safe to use. An in-depth report by the National Safety Council noted the risks of hands-free devices. Many erroneously assume that because they have eliminated the visual and tactile distraction of engaging with a phone, it’s safe. However, hands-free phones still cause cognitive distraction (paying attention to the conversation, listening and responding to someone else’s voice), something most people can’t recognize when it’s happening. In an analysis of more than 30 international studies, the NSC concluded that multi-tasking is a myth and people are not able to complete two high-level executive brain functions at the same time. Carrying on a conversation and driving are both high-level functions, and your focus on the conversation with affect your perception and reaction times behind the wheel.

Although there’s no anti-daydreaming statute, distracted drivers overall – whether talking on the phone or thinking about work - often demonstrates a failure to use reasonable care, which how we define negligence and hold other drivers accountable. For example, a driver who makes no effort to even slow down or brake for stopped traffic ahead is almost certainly distracted, assuming no visual obstructions. Even if we can’t prove the driver was looking down at their phone, the fact they failed to brake is evidence in a breach of the duty to use reasonable care (and rear-end collisions create a rebuttable presumption the rear driver is more than 50 percent liable anyway).

At Jeffrey Glassman Injury Lawyers, we understand proving driver distraction isn’t always as simple as establishing something like impairment. There’s no BAC test that shows a driver wasn’t fully engaged with eyes on the road. However, our motorcycle accident lawyers in Boston can gather evidence that supports this theory. This may include:

• Expert witness testimony. Certified experts in a range of fields, such as crash reconstruction, engineering and digital forensics, may provide an opinion based on analysis of the evidence, concluding the crash was causally connected to the defendant’s distraction.
• Admission of the distracted driver. No one can rely on this as most drivers are instructed not to admit to any fault at the scene of a crash or while talking to investigators, accidents are overwhelming and it does happen sometimes that a driver will admit their own distraction, either to other witnesses or to emergency responders.
• Surveillance tapes. Cameras are almost everywhere these days – street signs, traffic signals, storefronts, police dashboards to name just a few. Captured footage of the crash – or events just prior – may be useable in building a case based on driver distraction.
• Cell phone records. These might not be gathered by police automatically as part of their criminal investigation (unless there was a traffic fatality) but we can request a court order to have relevant portions released during the discovery phase of the lawsuit. These can tell us whether someone was texting, talking, snapping photos or posting to social media when they should have been focused on the road.
• Physical evidence in the vehicle. This might include things like open makeup containers or receipts or remains of recent food and drink purchases.

Our dedicated injury attorneys are going to explore every possible line of evidence to make sure not only that we have a strong case, but also that we have identified all defendants.

In some ways, distracted driving cases are much like any other motorcycle crash injury case. Motorcyclists can’t access no-fault PIP (personal injury protection) insurance coverage, which means they must start with legal action against others who may be at-fault.

This begins by identifying possible defendants and gathering evidence of their alleged distraction to establish negligence and their insurer’s liability to pay for your injuries.

Another possible defendant to consider is the driver’s parent/ owner of the vehicle. Teens and young adults make up a disproportionate percentage of distracted drivers (they have the highest level of phone involvement in crash or near-crash incidents, according to NHTSA data). Many teens drive their parents’ vehicles. MGL ch. 231 section 85B creates the presumption of an automobile owner’s responsibility in a crash. Vehicle owners may be vicariously liable if they allow someone else to use their vehicle and that person causes a collision. This doesn’t eliminate the liability of the driver, but rather adds the vehicle owner as a responsible party.

We might also want to consider whether the distracted driver was working or carrying out a work-related call at the time of the crash. Many businesses have been encouraged to enact anti-distraction policies for workers to reduce the odds of an on-the-job distracted driving crash. Those that don’t might be held directly negligent if the distraction was work-related. Even if there was such a policy in place, companies can also be held vicariously liable (per a legal doctrine known as respondeat superior), so long as we can show:

• Employee was negligent;
• At the time of the crash, employee was acting in the course and scope of employment.

Finally, there are a few other novel third-party liability approaches to distracted driving lawsuits that haven’t been firmly decided beyond a few jurisdictions but may in some instances be worth exploring in your motorcycle accident case.

One involves liability of third-party texters. In 2013, the Superior Court of New Jersey decision in Kubert v. Best, in which the court affirmed senders of text messages have a duty of care to refrain from sending such messages if they know or have special reason to know the recipient will view that message while driving.

Another involves the possibility of a passenger’s liability, based on a duty not to distract the driver or interfere with operation of a vehicle. Passengers who breach this duty might be deemed civilly liable for injuries sustained in the resulting crash. However, courts that have reached this conclusion have held the scope of this duty has to be reasonable and considered under the totality of the circumstances. One example might be if a passenger shouts or yells at the driver or obstructs the driver’s view of the road. However, passengers don’t generally have a duty to warn the driver or lookout for impending danger or supervise the person driving.

Finally, there is the potential civil liability of the company supplying the wireless service. However, these claims have generally failed because there is no relationship that exists between the provider and the driver that would create a duty of care – essential to any claim of negligence.

Our motorcycle accident attorneys in Boston can help you explore all viable options of damage recovery and are dedicated to fighting for the rights of motorcycle accident victims.