Driving Without Securing A Load
No motor vehicle may carry a load that is not adequately secured to prevent it from falling off or shifting onto the roadway such as to create a safety hazard. This rule could be used in conjunction with the FMCSR where a load problem causes an accident. However, this code section is specifically limited to operating a vehicle without adequately securing a load, and would not be the basis of a claim against a shipper who loads a truck but does not operate it.
Use of Radios, Mobile Telephones, and Wireless Devices
Drivers are instructed to use due care in operating vehicles and not to engage in actions which distract from safe action. A driver’s proper use of a cell phone or radio (including a CB, amateur, or ham radio) will not constitute distracted driving or the failure to use due. What constitutes “proper use” is not defined by statute. Therefore, counsel has wide latitude in making the case to the jury that a driver’s use of a radio or cell phone was improper.
Punitive damage claims for cell phone use are more problematic in light of the Court of Appeals decision in Lindsey v. Clinch County Glass, Inc. There, the defendant driver admitted he was not paying attention to the road because he was distracted from looking up a number in his phone. There was also evidence he habitually talked on his phone while driving. Nevertheless, the Court found no clear and convincing evidence of a pattern or policy of dangerous driving that would support a punitive damages award.
The Lindsey court essentially held that cell phone usage alone “without more” is insufficient to justify punitive damages. However, it did so while explicitly stressing that its opinion “should not be read for the proposition that punitive damages are never available in a case where a driver causes an accident because he or she was distracted while talking on a wireless communication device.” Other language in the opinion offers guidance as to what the “more” is that could be shown to avoid summary judgment on a plaintiff’s punitive damages claim: speeding or other traffic violations accompanying the defendant’s cell phone usage, driving under the influence, or a history of distraction-related accidents.
In 2010, Georgia took bold action to combat distracted driving. The passage of HB 23 outlawed the use of a cell phone while driving by persons under the age of 18 with a learner’s permit or Class D (i.e., provisional) license. The enactment of its companion bill, SB 360, also made it illegal for persons over 18 to drive while using a cell phone to “write, send or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data.” The bills were codified sequentially at O.C.G.A. §§ 40-6-241.1 and 40-6-241.2. Both laws should be interpreted as strengthening the general rule by clarifying two types of cell phone usage that shall not be considered “proper use,” i.e., any usage by minors or beginning drivers and texting while driving by a driver of any age. While both laws contain similar exceptions, they are very narrow and will usually not apply. Similarly, the ban on texting while driving found in regulation shall not apply to:
- A person reporting a traffic accident, medical emergency, fire, serious road hazard, or a situation in which the person reasonably believes a person’s health or safety is in immediate jeopardy;
- A person reporting the perpetration or potential perpetration of a crime;
- A public utility employee or contractor acting within the scope of his or her employment when responding to a public utility emergency;
- A law enforcement officer, firefighter, emergency medical services personnel, ambulance driver, or other similarly employed public safety first responder during the performance of his or her official duties; or
- A person engaging in wireless communication while in a motor vehicle which is lawfully parked.
Although one would expect a violation would involve the use of a cell phone, both statutes use a broader “wireless communication device” term. The term is defined to include the following: “a cellular telephone, a text messaging device, a personal digital assistant, a stand alone computer, or any other substantially similar wireless device that is used to initiate or receive a wireless communication with another person.” Also, the statutes specifically except certain devices from that definition: citizens band radios, citizens band radio hybrids, commercial two-way radio communication devices, subscription based emergency communications, in-vehicle security, navigation devices, and remote diagnostics systems, or amateur or ham radio devices. The exception for CB and two-way radios could be of potential significance in a trucking case, given their widespread use by CMV drivers.
While plaintiff’s counsel will usually want to obtain the defendant CMV driver’s cell phone records with the hope of finding that he was texting or talking on the phone at the time of a wreck, he or she should also look into whether the client could be tagged with the same behavior. Disclosure of a client’s cell phone number and service provider is almost always requested in the defense’s initial set of interrogatories and again during the plaintiff’s deposition. A nonparty request for documents to the service provider is almost sure to follow. Usually, the client can obtain his or her cell phone records directly from their service provider quickly or, if they pay an additional charge for the detailed billing feature offered by most wireless carriers, download them instantly from the internet. While it is true that the information gained may be unfavorable to the case, the choice between managing the problem by way of a frank conversation with one’s client versus a withering cross-examination of the client by defense counsel at trial is an easy one to make.