As many have heard, a new law was signed prohibiting texting and driving. It makes the use of a mobile device to text or access social media a secondary offense (i.e., it cannot be punished along and is only punishable alongside a primary offense such as speeding).
The law may have greater ramifications than punishing people who use mobile devices while driving because of the doctrine of negligence per se. Negligence per se is a doctrine of tort law, the effect of which is that where a law or regulation that exists to prohibits an action to prevent a harm, a duty is created on the one who caused a harm that is sought to be prevented by the law or regulation. In short, the very existence of the law creates a duty to others which effectively removes the plaintiff’s burden to prove duty as an element of negligence.
The following is an example relevant to many businesses. A plumbing company sends a team to address a leaky pipe at a customer’s house. During the trip, the driver is texting while driving and, not paying attention to the road, injures a pedestrian. Prior to the passage of the law, the injured driver would have to prove that the driver had a duty to not drive in the manner that caused the pedestrian to be hit. Now that the law is in affect, the driver now has such a duty by statute. This is one less element that needs to be proven in a negligence case and makes collection against injuring drivers easier. In this example, because the driver was working for the plumbing company and was in his scope of duty, the business is likely to be liable as well.
As such, businesses should be aware of this, remind their employees of the new law, and adopt policies that require their drivers to comply with the new law in order to potentially lower the risk to themselves. Drive safely.