New Law Against Texting While Driving: A Safety Statutue That Holds Violators Negligent Per Se?
Introduction
Governor Jim Doyle signed into law 2009 Assembly Bill 496,
effective December 1, 2010, which prohibits composing and
sending a text message while driving and imposes a fine of
between $20 and $400. The law provides exceptions for drivers of
emergency vehicles, for drivers using global positioning
devices, and for drivers who text via voice recognition
equipment. Anyone outside of these exceptions may be ticketed
solely for texting while driving. Wisconsin is the 25th state to
pass such legislation.
Safety Statutes
A safety statute is a legislative enactment designed to protect
a specified class of persons from a particular harm. [1]
Statutes with safety as a goal are not always safety statutes.
Wis. Stat. § 125.07(3) is a good example. The statute provides
that an underage person may not enter or be on the premises
where alcoholic beverages are sold and makes the owner of such
premises subject to a forfeiture of $500 or less. [2] The
Wisconsin Supreme Court determined that there is no such
predictable harm when a minor is simply allowed to enter and
remain on the premises of an establishment licensed to sell
alcoholic beverages. [3] Therefore, Wis. Stat. § 125.07(3) is
not a safety statute. The Court distinguished merely allowing a
minor to be on the premises from furnishing alcoholic beverages
to minors. [4] There, the Court reasoned, the predictable harm
is a minor’s loss of judgment and control. [5]
The new texting law is a safety statute if the legislature
designed the law to protect a specified class of persons from a
particular harm. Arguably, the specified class of persons is all
Wisconsin citizens and the particular harm is a collision caused
by a distracted driver who is texting.
Negligence Per Se
Negligence per se arises from the violation of a safety statute
if three criteria are met: (1) the safety statute was designed
to prevent the harm inflicted; (2) the person injured was in a
protected class; and, (3) the legislature has expressed its
intent that the statutory section serve as a basis for the
imposition of civil liability.” [6]
Just because a law is a safety statute, it does not follow that
violation of such law constitutes negligence per se. [7] In
Symes, the Plaintiff brought suit against a bar operator under
Wis. Stat. § 125.07(3) for injuries he received after being
severely beaten by an underage patron. [8] The Wisconsin Supreme
Court reasoned that even if Wis. Stat. § 125.07(3) was a safety
statute, the statute’s purpose is not to avoid or diminish the
likelihood of the type of harm inflicted on Plaintiff. [9]
Rather, its purpose is to shield immature persons from the
baneful influences of tavern life. [10] The Court also noted
that the Plaintiff, a third party, was not a member of the class
of persons sought to be protected by the statute. [11] Lastly,
Plaintiff did not prove legislative intent to impose civil
liability on violators of the statute, which according to the
Court, can be inferred from the language and surroundings of the
statute. [12]
In contrast, the Wisconsin Supreme Court in Totsky found the
Defendant negligent per se in violating safety statute, Wis.
Stat. § 346.46 or “the stop sign statute.” The Court reached the
following conclusions. First, Wis. Stat. § 346.46(1) was
designed to prevent the harm Plaintiff endured -- a collision
resulting from a vehicle that does not stop and yield to traffic
having the right-of-way. [13] Second, Plaintiff was a member of
the protected class -- people in vehicles which enter or
approach the intersection upon a highway not controlled by an
official stop sign or traffic signal. [14] Lastly, the
legislative intent that the statute serve as a basis for civil
liability could be implied by the language of the statute
itself. [15] According to the Court, Section 346.46(1)’s
language “is such a clear expression of concern for the safety
of highway users” and is “committed so plainly to the
responsibility of the operators of vehicles approaching stop
signs” so as to conclude that the legislature intended to impose
civil liability on those who violate the statute. [16]
A person seeking a negligence per se ruling on a texting case
will need to show that the harm inflicted was that which the
statute sought to prevent – arguably, a collision caused by a
distracted driver who is texting. Next, the person will need to
show that he or she is a member of the protected class –
arguably, all Wisconsin citizens. Lastly, the person will need
to show that the legislature has expressed its intent that the
statutory section serve as a basis for the imposition of civil
liability. Civil liability is having the legal obligation for
civil damages. As there is no direct reference to civil
liability, Courts will need to look at the language of the
statute.
The third criteria will perhaps be the biggest obstacle.
Effective December 1, 2010, Wis. Stat. § 346.89(3)(a) will read:
“No person may drive, as defined in s. 343.305(1)(b), any motor
vehicle while composing or sending an electronic text message.”
Is this language such a clear expression of concern for the
safety of Wisconsin citizens? Is this language committed so
plainly to the responsibility of the operators of vehicles to
not text while driving? This seems to be the hardest sell of
all.
Conclusion
Laws must adapt to advancements in technology. Wisconsin, like
the other 24 states with similar legislation, responded to an
increase in accidents caused by texting. Studies support such
legislation. A report released by Virginia Transportation
Institute showed that a person punching a phone keypad while
driving was 2.8 times more likely to crash or come close to
crashing.
There is little doubt that litigation will gradually surface
around whether Wis. Stat. § 346.89(3)(a) is a safety statute and
if so, whether a violator is negligent per se. Counsel for
Plaintiffs and Defendants alike will want to monitor
developments in this area of the law in order to effectively
advocate for their clients.
Claudia N. Lombardo is an attorney at Axley Brynelson, LLP. Her
practice includes personal injury law, bicycle accident
injuries, medical malpractice defense, stockbroker malpractice,
insurance litigation and criminal defense. She can be reached at
608.283.6744 or clombardo@axley.com.
[1] Totsky v. Riteway Bus Service, Inc., 2000 WI 29, ¶24, 233
Wis. 2d 371, 607 N.W.2d 637 (2000).
[2] See Wis. Stat. § 125.07(3)
[3] Symes v. Milwaukee Mut. Ins. Co., 178 Wis. 2d 564, 571, 505
N.W.2d 143 (1993).
[4] Id.
[5] Id.
[6] Id. at 573.
[7] Id. at 572.
[8] Id. at 567.
[9] Id. at 572.
[10] Id.
[11] Id. at 573.
[12] Id.
[13] Trotsky, 2000 WI 29, ¶ 25.
[14]Id.
[15] Id.
[16] Id.
