When a defendant is texting while driving is that negligence or willful and wanton conduct?
First, to bring a personal injury claim in NC, the plaintiff (injured person) must prove the defendant was negligent. Negligence is defined as the breach of a duty that proximately caused a persons injuries. An example of negligence is failing to stop and rear ending a car. Another is running a stop sign and colliding into another car.
Willful and wanton is a more eggregious act, for instance driving while impaired. Willful and wanton conduct can lead to punitive damages. Punitive damages can increase the amount of the base claim for compensatory damages such as medical bills, injuries, pain and suffering, permanent damages, and lost wages.
What about texting while driving?
Insurance companies don't want to admit texting rises to willful and wanton conduct that will increase the amount of the injury due to punitive damages. However, a recent settlement in North Carolina shows that insurance companies have to at least consider the texting in their evaluation of a car wreck claim.
In that case, which was settled in mediation, the claim would probably been valued at $60,000. However, the text records of the defendant driver showed she had sent 104 text messages around the time of accident. The defendant even admitted she was texting as she drove to her deposition in the case. A claim was made for willful and wanton conduct. The case settled for $120,000.
Sanders Law Firm PLLC had a recent case with liability being disputed. Medical bills were enormous. As soon as the firm took the case, Kirk Sanders sent spoliation letters to the insurance company and the defendant driver demanding that they preserve all mobile phone records around the time of the accident. The plaintiff made a decent recovery in that case because the defendant driver's phone records would have been damaging in a trial.
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