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New Law Against Texting While Driving: A Safety Statute That Holds Violators Negligent Per Se?
Published: June 23, 2010
Author: Claudia N. Lombardo
Introduction
Governor Jim Doyle signed into law 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.
For more information, contact Axley Brynelson Attorney Jason Knutson at 608.283.6753 or jknutson@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.
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