Tag Archives: negligence per se

1997 – Wrongful Death Involving Cell Phone Distraction

This case was a fairly high profile one because it was one of the earliest cases which highlighted the dangers of cell phone useage while driving.  Added to what would become a recipe for disaster was the fact that the driver who caused the collision was a teenager. 

In January, 1996, a 16 year-old girl whose parents were on a ski trip in Colorado, decided to take her parent’s company van out for a drive, even though she had been forbidden to do so.  She brought a cell phone along with her, and during the excursion, it fell onto the floorboard of the van.  Along the way, the cell phone rang, which distracted the teenager from her driving duties while she reached for the ringing cell phone.

During the few seconds that her eyes were taken off the roadway to retrieve the cell phone, the van veered across the center line of the highway, striking head-on a small compact car which was traveling in the opposite direction.  In the other car was a family of four – father and mother in the front seat, young daughter and son in the back.  The impact resulted in the death of the 3 year-old boy and serious brain damage to the father, resulting in his total and permanent disability.  The mother and daughter were also injured, but survived without permanent physical injuries.

A wrongful death lawsuit was filed was almost immediately in the 352nd District Court, seeking damages against both the teenager individually and against the teen’s parents.  Besides allegations of common law negligence, the plaintiffs sued under multiple other theories, including negligent entrustment, negligence per se and a claim that the vehicle itself constituted an attractive nuisance for a teenager whose parents were out of town.  With regard to their negligence action, plaintiffs complained that the teen’s parents had failed to properly instruct her on how to safely operate a mobile phone while simultaneously driving a vehicle.

During the pretrial of the case, the plaintiffs asked Judge Sudderth to recognize a new cause of action in the law – a cause of action for negligent entrustment of a cell phone.  Plaintiffs argued that the law recognizes a cause of action for negligent entrustment of chattel (tangible personal property – the cell phone itself).  Plaintiffs argued that such a cause of action exists in the common law if the person supplying the chattel has reason to know it is likely to be used in a manner involving an unreasonable risk of harm.  Plaintiffs argued that the entrustment of a cell phone to a teenager driver under these circumstances was similar to the entrustment of a firearm to a minor child, which had already been recognized in Texas jurisprudence as a basis for liability under the theory of negligent entrustment of chattel.  Judge Sudderth rejected this argument, declining to recognize a new cause of action in Texas law for negligent entrustment of a cell phone.

The plaintiffs also sought damages under the theory of negligence per se, since the teenager was also operating the vehicle with an expired driver’s license at the time of the collision.  Judge Sudderth also declined to apply the law of negligence per se in this case, rejecting plaintiff’s contention that an expired driver’s license was tantamount to driving without a license.  In her ruling, Judge Sudderth drew a distinction between driving under an expired license and driving without ever having been licensed at all.  Causing a collision or reckless driving, Judge Sudderth ruled, would be a direct result of being an unlicensed driver; hence, the law of negligence per se would apply.  However, Judge Sudderth held the mere fact that a valid license had been permitted to expire would have no direct causative relationship with the quality of a driver’s skills or abilities behind the wheel.  Therefore, Judge Sudderth ruled that under the facts of this case driving under an expired license, while a violation of the law, would not invoke the doctrine of negligence per se.

The case went to the jury on the theory of negligence as to the teenager and negligent entrustment of a motor vehicle as to the teen’s parents.  In a 10-2 verdict, the jury imposed liability on the driver, but not her parents.  Damages were awarded against the teenager in the amount of $6.9 million.  Neither the verdict, nor Judge Sudderth’s pretrial legal rulings, were appealed.

The tragic and fatal accident that gave rise to this lawsuit took place in January 1996.  Judge Bonnie Sudderth heard many news accounts of this accident while she was campaiging for the position of judge of the 352nd District Court.  She won that election two months later and by the time she took office, the lawsuit had already been filed and randomly assigned to the 352nd District Court.  The case went to trial one year later and was the first trial that garnered media attention during Judge Sudderth’s tenure on the district court bench.  It was notable because access to cell phones, cell phone technology and research regarding cell phone useage while driving was still in its infancy during this era.

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