Free Consultation • Call 24/7

Over 100 years of combined personal injury litigation experience.

For a 100% Free Consultation

What Should You Do If You Are Hit by A Driver Who is Texting?

Texting and Driving

If you are hit by a driver who is texting, there are several Massachusetts laws on the books governing both the driver’s criminal liability, as well as your ability to recover damages.  The Massachusetts Safe Driving Law establishes criminal penalties and civil liability for those who endanger others by negligently driving while texting.  Penalties increase when death or serious injury is caused, as do the civil remedies.  If you find yourself the victim of an accident caused by another driver who was texting while driving, you need an attorney who knows how to navigate these texting while driving laws, knows how to collect the proper evidence to prove that the vehicle operator was in fact texting while driving or otherwise operating their vehicle negligently, and knows how to get the compensation you deserve for being a victim of such conduct. You need an experienced attorney to help accomplish your legal objectives and recover full compensation for both personal injuries and property damage sustained in an accident caused by a texting, or otherwise distracted, driver.


Proving Negligence

In order to find a defendant criminally guilty of operating a vehicle negligently so as to endanger, the Commonwealth must prove three things beyond a reasonable doubt:

  1. The defendant operated a motor vehicle;
  2. He or she did so on a way, or in a place where the public has a right of access, or in a place where members of the public have access as invitees or licensees; and
  3. He or she did so in a negligent manner so that the lives or safety of the public might have been endangered

In a civil lawsuit to recover for personal injuries, you simply need to demonstrate by a preponderance of the evidence (more likely than not) that the other driver acted negligently and that this negligence was a direct cause of the injuries you suffered.  Texting while driving is very strong evidence of such negligence.  But proving that the other driver was in fact texting when the accident occurred can be difficult.  A trained and experienced personal injury lawyer can help.


Massachusetts Laws Governing Texting While Driving: Civil & Criminal

Texting while driving is a serious issue that has led to more unnecessary deaths in recent years than one cares to fathom.  States have begun to take action on this issue, including Massachusetts, by passing laws providing for both criminal and civil penalties when a texting driver causes injury or damage due to their inattention to their driving.  In 2009, a study out of Virginia Tech Transportation Institute (VTTI) reported that when drivers text, they are 23 times more likely to have an accident. Every time a driver sends or receives a text, their eyes leave the road for an average of 4.6 seconds, according to the VTTI.

In 2010, Massachusetts passed the Safe Driving Law and became the 29th state to ban texting while driving. The law bans drivers from manually composing, sending, or reading an electronic message while operating a motor vehicle. The ban covers phones, handheld electronic devices, iPads, tablets, and laptop computers. The law prohibits these actions while operators are actively driving and when they are stopped at traffic lights. This law, in its earlier phase, has had some impact on the issue, but not enough. The problem was that drivers could still pick up cell phones and talk, constituting simply another form of distracted driving.  This all changed in 2020, when the Massachusetts Hands-Free Driving Law took full effect, banning drivers from all handheld cell phone use. Under this law, drivers can now only talk using hands-free technology, such as Bluetooth.

Prosecutors have been able to charge negligent drivers with texting and causing injury since 2010 when the Massachusetts law banning texting while driving took effect. The law banning the use of electronic devices while driving is MGL Chapter 90, Section 13B. If drivers cause injury or death, they can be criminally charged under MGL Chapter 90, Section 24(2)(a).

The law applies to all electronic communications, including sending and reading texts, sending and reading emails, and any sort of internet browsing. For non-criminal charges (if there is no accident or injury), the fine is first $100, then $250 for a second offense, and then $500 after that.

A case that was the first of its kind in Massachusetts arose after the law banning texting while driving took effect in 2010.  As an 18-year-old driver was sentenced in Haverhill District Court, the public learned what criminal punishments violators can face. What is less known is the civil suit that followed. On February 20, 2011, Aaron Deveau, 18, was driving in Haverhill and crossed the center line, striking a car driven by a 56-year-old New Hampshire man. The man died of his injuries a few weeks later, while his passenger, a 59-year-old Haverhill woman, was severely injured and left with physical disabilities. After the man’s death, Deveau was charged with motor vehicle homicide and texting and causing injury and was subsequently involved in civil lawsuit involving personal injury and wrongful death.


Negligence Arising from Cell Phone Use

Fault for an accident depends on each driver’s degree of negligence. Negligence occurs when a driver fails to meet the reasonable standard of care expected of drivers. Speeding, improper lookout, distracted driving, and other unsafe behaviors (including cell phone use while driving) can form the basis of a negligence claim.

In Massachusetts, violation of a safety law is not presumed to constitute negligence. Rather, violation of a safety law is merely evidence of negligence. A jury can weigh a violation of the hands-free law against other contributing factors when it decides if the driver was, in fact, negligent.  So the fact that another driver was texting while driving, for example, is not an automatic win for an injured plaintiff.  But, as mentioned above, it is certainly very strong evidence to support a finding of negligence.

Science suggests that cell phone use while driving is highly dangerous. A vehicle traveling at 35 miles per hour covers over 100 feet during a two-second glance at a text message.  Moreover, society has established norms against texting and calling while driving. Forty-eight states prohibit texting while driving, while 22 states require hands-free use of phones while driving.  So the use of a cell phone while driving is strong evidence to support a jury finding that a driver acted negligently.


Evidence to Prove Texting While Driving

To prove the other driver was texting or on the phone during the accident is a trickier endeavor than one may think.   After all, a jury isn’t necessarily going to simply believe it because you say so. It often requires the use of subpoena power to obtain phone records to determine if the activity occurred either in text or call at the exact time of the accident.  Police may cite a driver for texting while driving in the accident report, and this is also key evidence that can be used in a civil personal injury lawsuit.  An experienced lawyer will also check the intersection and surrounding businesses to see if there’s any available video footage of the accident available, which may show the other driver using their phone at the time of impact.   The assistance of an experienced personal injury lawyer can be crucial when it comes to obtaining this necessary evidence.

With sufficient evidence to support a negligence claim against the other driver,  you may be entitled to compensation for:

  • medical expenses
  • lost wages
  • pain and suffering and loss of enjoyment of life.
  • If you cannot return to work, you may also be entitled to seek compensation for lost future earnings
  • Damages for emotional distress
  • Any other out-of-pocket costs related to the accident or your injury may also give rise to recoverable damage.

Texting while driving can also, very often, lead to fatal car accidents. If a family member or loved one has been killed by a driver who was texting, you may be able to file a wrongful death lawsuit. If an accident results in the death of a family member or loved one and you believe the driver at fault may have been using a cell phone or electronic device when the accident occurred, it is critical to act quickly and contact an experienced personal injury attorney as soon as possible to properly handle your case.


Call Us Today to Speak with a Massachusetts Car Accident Lawyer

If you or a loved one have been injured in an accident with a driver who was texting, or using any other form of electronic device while driving, you are likely entitled to compensation.  Contact us today, either online or by phone at our Boston office (617) 357-8600.   We have over 100 years of combined personal injury litigation experience that can be put to work for you.