Commentary: Coming Soon: The Intentional Tort of Texting

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Every legal theory has to start somewhere. Punitive damages for drunken drivers didn’t arrive overnight. Punitive damages for intentionally disregarding the rights of others in general didn’t arrive overnight. It took a tragedy at Milwaukee’s Miller Park for the Wisconsin Supreme Court to decide in the victim’s favor on punitive damages.

Now there’s another chapter on the horizon. Rep. Peter Barca (D-Kenosha) and others have introduced, and both chambers may soon pass, a law banning texting while driving in Wisconsin. With this law the argument that punitive damages should be assessed against texting drivers will get that much easier.

To get a feel for where you are going you have to know where you have been. The “new” punitive damages law isn’t that “new.” For the past 15 years, Wisconsin residents have lived with a law allowing punitive damages when “evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.” (Wis. Stats. Sec. 895.85(3).) The caselaw is chock full of examples where drunken drivers, batterers and trespassers were found liable for punitive damages based on choices they made.

The case of Wischer v. Mitsubishi Heavy Industries America Inc., 2005 WI 15, involved the collapse of the “Big Blue” construction crane at Milwaukee’s Miller Park. The plaintiffs, the estates of workers killed in the accident, sought punitive damages based on the decision to lift a section of the stadium roof despite strong winds.

They argued that the decision to proceed with the lift constituted an intentional disregard of the workers’ rights because: 1) It was an intentional act; and 2) It resulted in the disregard of the plaintiffs’ rights. As you already know, the jury returned a massive punitive damage award.

Before, and especially after this decision, plaintiffs’ attorneys have tried, and many times failed, to get circuit courts to allow a jury to decide whether a texting driver warrants punitive damages.

Plaintiffs’ attorneys have argued that to impose punitive damages would both serve to punish wrongdoing and have the exemplary effect of furthering the legitimate state interest of curbing unsafe driving practices involving cell phones. Punishing the wrongdoer is easy; simply put, a big judgment is punishment.

Without a texting-while-driving ban, counsel have had to argue in generalities that punitive damages would further a state interest. But that may not be the case for too much longer, if the texting-while-driving ban is passed. The state will have spoken and made obvious the legitimate state interest in curbing this unsafe driving practice.

Nowadays everyone is spreading the news that texting while driving is dangerous. Milwaukee’s Sheriff David Clarke, American Idol’s Danny Gokey and countless billboards across our state remind every driver that texting distracts and distracted drivers are dangerous. A driver chooses to text while driving. That driver, I believe it is safe to argue, was aware of the dangers involved. That driver made the decision to take his/her eyes off the road. Wisconsin’s Civil Jury Instruction 1070 states that when you look but don’t see what is in plain sight, it is as if you did not look at all. Texting takes drivers’ eyes and attention off of the road. A texting driver’s attention is influenced by the need to stare at their little cell phone screen. They are “under the influence” of the need for constant communication. Is it that different than drunken driving? Is it worse?

Rep. Barca has been quoted as saying that texting is six times more dangerous than talking on the phone while driving. Simply Google “texting while driving is like drunk driving” and a gaggle of scientific and not-so-scientific studies pop up. One study shows that a texting driver’s slow reaction time equaled 30 extra feet of stopping distance. The same study showed that a drunk driver’s reaction time cost him “only” 15 extra feet of stopping distance. That suggests that texting while driving is, in some instances, more dangerous than driving while drunk.

Don’t be surprised to see a slew of punitive damage causes of action soon after the texting while driving ban is passed. Isn’t it about time?

Jonathan Groth is the owner of Groth Law Firm SC and concentrates his practice on helping those injured because of the negligence of others.