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Punitive Damages—Cell Phone Use While Driving

Posted by Ted A. Schmidt | Sep 29, 2021 | 0 Comments

Punitive Damages—Cell Phone Use While Driving

Purdy v. Metcalf, No. 2 CA-SA 2021-0039 (App. Div. II, September 24, 2021) (J. Staring)

PUNITIVE DAMAGE INSTRUCTION APPROPRIATE IN WRONGFUL DEATH CASE WHERE EVIDENCE SUPPORTS CONCLUSION DEFENDANT PROFESSIONAL DRIVER WAS DISTRACTED BY CELL PHONE USE WHILE DRIVING AT EXCESSIVE SPEED FROM WRONG SIDE OF COMMERCIAL TRUCK WHEN HE RAN A RED LIGHT CAUSING COLLISION WITH PLAINTIFFS

This wrongful death and personal injury suit was brought after the defendants' commercial garbage truck ran a red light killing plaintiff's mother and injuring the decedent's husband.  At the time of the accident, the defendant driver, contrary to company policy, was operating the truck from the right side. Company policy mandated the right side driving controls be used only when the driver is actually picking up trash and in such case the vehicle should never be operated at a speed greater than 15 miles per hour. At the time of the collision the defendant driver was travelling 51.45 miles per hour in a 45 mile speed zone.  Additionally, the collision occurred at approximately 11:11 a.m. The defendant driver had two cell phones in his possession. The company phone showed a call at 11:10:35 a.m. which the driver's supervisor claimed reflected a call to the supervisor to report the collision.  The driver's personal cell phone was not immediately produced. When it was discovered all calls had been erased.  The defendant refused to answer questions at deposition about the cell phone usage taking the 5th Amendment in the face of charges for violation of A.R.S. § 28-672, which makes a civil traffic violation a criminal misdemeanor when the violation causes serious physical injury or death.

Plaintiffs sued claiming negligence, negligence per se negligent training and supervision. Their punitive damage claim was dismissed on partial summary judgment. Plaintiffs then brought this special action. The Arizona Court of Appeals accepted jurisdiction and granted plaintiffs relief.

Here, there was expert testimony that there were “data transfers” on the driver's cell phone at the time of the collision consistent with “active usage.” This could be explained by the active use of an app or internet browsing. While defendants offered evidence to the contrary, the court of appeals found plaintiffs' expert's reliance upon the defendant driver's deletion of data from the phone as a sufficient fact to support the expert's opinion.  Litigants have a duty to preserve evidence the know or reasonably should know to be relevant and a party should not receive the benefit of summary judgment on a punitive damage claim due to their failure to preserve such evidence.

The court of appeals acknowledged that cell phone use alone, while driving, is insufficient to support punitive damages.  However,

Viewing the facts and reasonable inferences in the light most

favorable  to  plaintiffs,  the  circumstances presented here—

including the cell-phone use, the running of the red light,

the speeding, the driving from the right side of the truck, the use of cruise

control,  and  [defendant driver's]  status  as  a  professional  driver—constitute  a

“series of events of deliberate bad faith or breaches of duty

(“The requisite intent and  outrageous  and  egregious  conduct  must  occur 

in  tandem  with  the conduct  giving  rise  to the injury in order to recover

punitive damages.”).Thus,  on  the  record  before  us,  a  reasonable

 jury  could  find  by  clear  and convincing  evidence  that  [defendant driver]

“consciously pursued a course of conduct  knowing  . . .  it  created  a 

substantial  risk  of  significant  harm  to others.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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