The cost of texting

If you are texting or engaged in a cellphone discussion with someone you know is driving, should you share legal accountability if there is a crash?

In a recent news story, an insurance and legal expert pointed to a New Jersey court ruling from 2013 where that possibility was considered, in the context of texting.

I posted the news story on Facebook. Goodness, the negative responses!

  • “That is ridiculous. How would you know? Where is the intent?”
  • “Just plain stupidity…”
  • “This is bad, bad all around. Why should the onus be on the texter? This is bs”
  • “This can’t be serious??? What a joke!! If the driver is that much of an idiot, then his license should be taken away. Not make the texter liable.”
  • “Isn’t it the receiving --------’s fault for actioning it at an inappropriate time – I mean REALLY – what the hell is this!”
  • “Bullshit and plain old stupid. The blame should be put on the driver, period, as the ones responsible for answering. This is officially the dumbest thing I have seen on the internet.”

Most of the responders, I believe, were envisioning scenarios where they would have no way of knowing that the person they were texting was driving. Or that a driver would make the stupid choice to read and / or respond while continuing to drive.

But let’s assume that you know.

Twenty-five seconds after you send a text, the driver texts a response. Seventeen seconds later, the driver initiates a 911 call.

Leaving time for the driver to stop the vehicle and observe the injuries he reported to the 911 operator, the crash must have occurred immediately after he hit send.

The driver had crossed the centre line, crashing into an oncoming motorcycle. The driver and passenger of the motorcycle each lose their left legs as a result of the crash.

This is the true story told in the 2013 New Jersey court decision, which you can access through this hyperlink.

The evidence fell short of proving that the girlfriend knew her boyfriend driver would be responding to her text while driving.

But the court made it clear that had the evidence proved that point, the court would have imposed a shared legal accountability on her.

I will do my best to help you understand the reasoning of the court, but please read the decision for yourself because I cannot come close to doing it justice in a few paragraphs.

The court used a passenger as an analogy to a remote texter.

Obviously, a passenger must not actively distract the driver. The court used an example of suddenly holding a piece of paper in front of the driver’s face and urging him to read it, or holding a cellphone with a text message or picture on it in front of the driver’s eyes.

That, of course, is not what occurs when you send a text message. The cellphone doesn’t leap up in front of the driver’s eyes, blocking his view of the road.

The court considered whether passenger liability could extend to urging the driver to take his eyes off the road to look at a distracting object.

Careful not to take things too far, the court noted:

“It is the primary responsibility of the driver to obey the law and to avoid distractions. Imposing a duty on a passenger to avoid any conduct that might theoretically distract the driver would open too broad a swath of potential liability in ordinary and innocent circumstances.”

Extending the driver’s “primary responsibility” to the texting situation, the court noted that the sender of a text message should be able to assume that the recipient will read it only when it is safe and legal to do so, i.e. when not operating a vehicle.

But, noted the court,

“…if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.”

Would a British Columbia court come to a similar conclusion?

Would that conclusion extend beyond texting, to include cellphone discussions? I can usually tell when the person I’m talking to is driving. And I terminate the discussion.

Do you?

If a crash occurs while you are engaged in a text or cellphone discussion with the responsible driver, will you feel responsible?

I think you should. And I think you should share legal accountability as well. But you won’t be covered by the driver’s insurance.

Are you prepared to risk losing your life savings over a cellphone discussion or text exchange?


Chit-chat, OK; cell, no

How is it any different from talking to a passenger?

We hosted a small gathering for my step daughter’s 30th birthday. She got to hear my road-safety pitch about the ridiculousness of banning hand-held, but not hands-free cellphone use, “for the 500th time."

The topic just sort of came up when I was chatting up one of her friends. It always comes up. I’m like a child at show and tell with some shiny cool thing I’m dying to share.

She might have thought it was cool the first time. Noting that it was “for the 500th time” is a strong clue that any shine it might have had has been lost.

Her friend kindly showed interest in what I had to say.

His immediate response was a predictable one because 500 of 500 folks I share my pitch with respond with the same question:

“How is it any different from talking to a passenger?”

It’s a very reasonable question, because my pitch is based on a similar kind of comparison.

We all agree, I think, that hand-held cell phone use is dangerous and illegal. My pitch is that since the hands-free version has been scientifically proven to pose the same level of danger, it should also be illegal.

The flip side of that coin is that talking to a passenger is legal and, presumably, safe. Hands-free cellphone use seems a lot like talking to a passenger. Therefore, shouldn’t hands free cell phone use be legal as well?

Please understand that I take no credit for the “heavy lifting” of scientific study and analysis that forms the basis of what I am about to share with you.  

I do have over 20 years of experience sorting out what causes car crashes and the science and analysis fits my experience, but please don’t discount what I tell you on the basis that I might be some crazy maverick.

And if you have any doubt at all about what I am sharing with you and have a genuine interest in learning about this stuff, please ask and I will send you some reading material.

Fully 50 per cent of the car-crash cases I have handled arose when a driver inexplicably failed to notice that the traffic ahead had come to a stop and drove into the back of a stopped vehicle.

Most of the other 50 per cent are a mix of all sorts of other driving scenarios where the offending driver was simply not attentive to what was going on:

  • a driver looking in the direction of an approaching vehicle but somehow not “seeing” it
  • looking out the windshield, but somehow failing to notice a stop sign, etc.

That’s what the science says occurs when your brain is elsewhere, talking on a cellphone while driving. You are looking out your windshield, but “missing” up to 50 per cent of what’s there.

A passenger is another set of eyes. How many times have you played “back seat driver, alerting the person behind the wheel that he is about to miss a turn? Or alerted with a, “Hey!” and/or noticeably bracing yourself when the driver was roaring up behind stopping traffic at a changing light or seeming to miss other road hazards?

And please, next time you’re chatting away with a passenger, notice what happens when traffic becomes the least bit complicated. The pace of discussion automatically slows as both of your brains become more engaged with the roadway.

As I was explaining this to my step-daughter’s friend, I was delighted to see that his eyes weren’t glazing over. And after puzzling about it a bit, he came up with another piece that I had not read about nor come up with on my own.

Chit-chat with your passenger is more likely just that: chit-chat. The polite filling of dead air space to avoid an uncomfortable silence.

A cellphone discussion is more likely to be a purposeful and engaging communication. You don’t pick up your phone and call folks to fill dead air space. And when you’re done talking, you hang up.

I haven’t seen any science on this point, but it makes sense to me that a purposeful and engaging communication is more likely to be cognitively distracting than idle chit-chat.

The problem with cellphone use while driving is that you are engaging your brain in something other than the road ahead of you, leading you to “miss” up to 50 per cent of what is going on in your field of view, and that this is no different whether you are talking hand held or hands free.

Is it similarly distracting to engage your brain in a discussion with your passenger? I imagine so, and please keep that in mind.

But idle chit-chat discussions with your passenger are unlikely to be as distracting as purposeful and engaging cell phone discussions. And a passenger is another set of eyes, able to alert you to things you miss and adjust the pace of the discussion to fit more complicated traffic situations.

Are you ready to support me in pushing for an all-out ban on cell phone use while driving?

Fighting RCMP, CBC

“Swimming against the current” is an understatement. Two of the most powerful and influential publicly funded organizations (the CBC and RCMP) are working against me.

In my last column, I shared my renewed passion for a pet road safety topic after attending a TEDx event with my son. The day after publication, I caught a CBC Daybreak South call-in segment hosted by Chris Walker. I believe it’s called Mind Benders.

The trivia question was to name, with correct pronunciation, the RCMP training facility in Regina.

The caller, providing his first name as Brian, answered correctly: “Depot” – pronounced with a soft “e”. How did he know? He is an RCMP officer.

I love the CBC, by the way. It hurts my heart when I hear about cuts to funding this important Canadian institution. And Chris Walker seems like a really fine chap.

I also love the RCMP. Sure, every huge organization will have its issues, but I am proud as heck that we have such an incredible force looking after law and order. And Brian’s probably an excellent police officer.

There must be a punch line coming. What heinous road safety crime did Chris and Brian commit?

Chris immediately identified, perhaps from background noise, that Brian might be driving. Intending to be safety conscious, he asked if that was so.

Brian confirmed the suspicion, but clarified that he was talking hands free.

And the trivia game continued.

Chris and Brian, representatives of two of the most powerful and influential publicly funded organizations in Canada, gave the message that cellphone use while driving is safe as long as it’s hands free.

Perhaps most of you agree with that message. If so, and you were listening to Mind Benders, your ignorance would have been re-inforced.

If you did not think that hands free cellphone use was safe, or had any doubt, that message might have influenced you to think that it was.

And as a safety conscious person, you would have incurred the expense of acquiring hands free technology if you didn’t already have it. And felt an increased confidence in engaging in cellphone discussions while driving, as long as you were using that technology.

That’s the worst aspect of that pervasive ignorance: confidence.

If blithely unaware of the dangers of an activity, there is no reason to curb that behaviour. And no extra care is taken to try to counteract those dangers.

Consider texting. Everyone knows that it’s dangerous. Risk-taking drivers who choose to text presumably do it less than they would if they thought it was safe.

They are likely to wait until stoppages in traffic or very calm traffic situations and to compensate for the danger by being super-aware of their surroundings.

Nobody seems to know about evidence that hands-free texting (voice to text) can be even more dangerous because of the cognitive distraction of getting the device to understand what you are saying and the corrections required when the device gets it wrong.

Safety conscious drivers, unaware of the danger, don’t restrict their use of voice to text, don’t limit the behaviour to calm or stopped traffic situations and do nothing to compensate for the danger they don’t know exists.

That doesn’t just increase the problem, it exponentially multiplies it.

The same applies to hands-free cellphone use. Unaware of the danger, safety conscious drivers don’t restrict their cellphone discussions behind the wheel, don’t limit the behaviour to less risky traffic situations and do nothing to compensate for the danger they know exists.

We are in desperate need of mass advertising to replace the widely, and honestly held belief that hands-free cellphone use and texting are safe.

I say “honestly held” because our public institutions are giving us the exact opposite messaging. We pass laws prohibiting hand-held use, implying that hands-free use is safe. And we have public displays like the Mind Benders segment that reinforce that message.

I request — nay, I demand — that the upper echelons of the CBC and RCMP immediately and publicly issue statements alerting drivers that hands-free cellphone use and texting while driving are just as dangerous (if not more so in the case of voice to text) than doing so hand held.

Do you share the image of me futilely whacking a pool noodle against a brick wall?

Doubt anything that I’ve written about the dangers of hand-held cellphone use while driving? Please e-mail me and I’ll send you the science.

Interested in joining me with a pool noodle of your own? Please let me know. Perhaps enough pool noodles will make a difference.


Can passion go too far?

I attended a TEDxYouth event on May 17. Twelve incredible youth, aged 11-17, presented their ideas.

One of them was my 12-year-old son, Caden. What a stinker to have such an opportunity!

I walked out of there more than a proud papa. I had been touched by the incredible youth and the ideas they presented. And inspired by their calls to action. One spoke about setting incredibly grand goals, and going after them.

A particular passion of mine about road safety was rekindled: that piece I write about from time to time about hand-held versus hands free cellphone use.

I shared my passion with Caden in the spirit of that TEDx evening. He had taken it as a given that talking on a cellphone while driving is a bad thing, but I explained the science of it to him anyway.

That drivers talking on cellphones see (their eyes open, looking out the windshield) but fail to “process” up to 50 per cent of what’s right in front of them.

It has something to do with how our brains work, I explained.

We confidently think we can multi-task. But neuroscientists say that our brains can focus on only one thing at a time.

Rather than two, parallel focuses, our brains are really flipping back and forth between the two tasks.

And the flipping away from the driving task leads to “missing” things even though our eyes are wide open, looking out the windshield.

We don’t realize it’s occurring. We travel thousands of kilometres, chatting on the phone here and there, with nothing bad happening. From time to time, we will miss a turn off or arrive at a destination not remembering how we got there, but we chalk that up to being forgetful.

Our confidence builds. As does our dependence on that cellphone.

It’s Russian roulette with a thousand chamber revolver. Sooner or later the 1 in 1,000 odds will add to rising car crash statistics.

I told Caden he was only three years old when the first cellphone law in British Columbia was enacted on Jan. 1, 2010. A law that made things worse instead of better.

Our government knew the science, I told him. They can’t hide from their own, internal Discussion Paper published in 2009 that includes this passage summarizing the science:

In both simulated and real driving environments, the use of electronic devices has been shown to result in crashes and near misses. Drivers fail to process approximately 50 percent of the visual information in their driving environment when they are using electronic communication devices. Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.

And they knew what might happen if they did something so moronic as a partial ban, directed only at hand-held use:

Legislation that bans only hand-held cell conversations conflicts with the research that has consistently found no difference in the degree of distraction between hand-held and hands-free cell conversations. As a result, these laws may not provide the expected benefits and may even generate harmful indirect impacts such as a false sense of security for those who talk on hands-free devices while driving.

Caden immediately understood that concept, that banning only hand-held use would automatically send the loud and clear message that hands free was safe.

Safety conscious drivers, who up until 2010 had been leaving their phones alone, were led to believe they could safely use a cellphone while driving if they simply spent the money on hands-free technology.

The predictable result was more, instead of less, cellphone use behind the wheel.

Sure enough, I told Caden, a downward trend in car crash numbers coincidentally ended in 2010. Then a plateau. And after 2013, a steady increase.

I told Caden that I’m jumping out of my skin to share this story with British Columbians.

  • Maybe if I recorded a compelling video, like a TED talk.
  • Maybe if I did a stunt like walk to Vancouver and back until that video got a million views.
  • Maybe then British Columbians would demand a change in the law to ban all cell phone use while driving.

My son’s a bright one. “How long does it take to walk to Vancouver?” he asked.

“That doesn’t really matter, Caden. I would walk back and forth until I reached my goal.”

By the end of the evening he was in tears. “If Daddy spends his time walking to and from Vancouver,” he worried, “who’s going to pay the mortgage?”

How’s that for dashing my TEDx inspiration!

Perhaps my unbridled passion can go too far. Or should I follow through with the faint hope that the government will listen and fix what they broke in the first place?

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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