The code word for “fear” in South Florida car crash cases is now Punitive Damages! Why are punitive damages so significant now versus in the past? Let me explain:
It all starts with Representative Irv Slosberg from Boca Raton; he is a traffic safety crusader. He lost one of his twin daughters to an automobile accident and he is on a mission to make Florida a safer place to drive. I have been working with his team at the Dori Saves Lives Foundation for many years. They are as committed to their jobs as any mother against drunk driving.
Two years ago, Representative Slosberg passed Florida Statute 316.305, better known as the “Florida Ban on Texting While Driving Law.” That law defines what a person cannot do while driving:
(3)(a) A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of non-voice interpersonal communication, including, but not limited to, communication methods known as texting, emailing, and instant messaging.
I am sure most people heard the law was difficult for law enforcement to actually enforce. The law said that texting and driving as a “secondary offense” (see FL Sect. 316.305 2(d)), which means that you can’t get a ticket for “texting and driving” without getting a ticket for something else, like speeding, not staying in your lane, or failure to yield right of way. Of course, when one is texting and driving, one often unintentionally breaks the rules of the road giving a traffic cop plenty of reasons to stop and double cite you.
However, the real effect of the law was not on the criminal or traffic citation side; the real effect of the law was on the civil side of every accident case. The new no texting law really blurs the line between “simple negligence”, which is the failure to use reasonable care, and “gross negligence”, which
is engaging in behavior that one knows or should have known could cause injury. Prior to the new law, texting and driving were considered simple negligence. There was no rationale why you couldn’t text and drive as long as you were being careful about it. Well, statistics don’t lie. There is simply NO WAY to be careful and text while you drive. Pick one thing at a time, put down the phone and drive, or pull over and stop and text, but don’t do them simultaneously.
The new law gave Florida judges the right, even the obligation, to find that using an electronic device while driving is inherently dangerous and therefore if you get into an accident while texting you can be found guilty of “gross negligence” not just “simple negligence.” That is where Punitive Damages come into play. Let’s make the distinction between the two main types of negligence:
In a simple negligence case, for example, where you are at a stoplight and you are talking with your front seat passenger and your foot comes off the brake and your car runs into the car in front of you: that is simple negligence. You didn’t mean for it to happen, but you accidentally let off the brake and caused an accident. If that happens you will be liable (legally responsible) for the damages you did to the person you hit. Those damages can include any “property damage” (their car needs repairs, their glasses broke in the accident, or they had a great bottle of wine in the back seat and it broke when you hit them). Those are all property damages. Plus you will be responsible for any medical bills the person has to pay. Medical bills are a complex subject in injury cases, so I won’t go into details, except to say that if you have big medical bills, they will become a part of the injury case. There is also the right of the injured person to ask for lost wages. Finally, they can ask for pain & suffering. They can ask for all of that stuff in the past and into the future.
As you can see, just the damages in a medium-sized injury case can start to add up to big numbers. This can be a HUGE verdict for the Plaintiff and it is all based on the laws and rights you have when you are asking for general negligence damages. One great thing about all these simple negligence damages is that if you are poor and have no ability to pay them off, you can always go to Bankruptcy Court and have that court discharge (let you off) that debt, along with all your other debts. So, even a huge million dollar simple negligence case can be overcome by the defendant who can get out of paying it in the end.
Now, let’s take a quick step back and talk to the parents of teenagers directly. Parents, do you know that the paper you signed to get your child a driver’s license makes you 100% responsible for everything they do in a car? So even if you tell them not to drive and they take a neighbor’s car out of the driveway for a joy ride, you are liable. Even if you grounded them or took their keys away and had them swear not to drive. You are on the hook and you can’t get off if you sign that paper. Period. At least until they are emancipated and NOT driving any car you own.
Ok, back to Punitive Damages: the world turns upside down with Punitive Damages. Go back to the simple negligence case where you rolled into the car in front of you when your foot came off the pedal. Pretend instead that you picked up your iPhone to look at an email and your foot slipped off the brake and hit the car in front of you. This is a much different case! The law in Florida will allow Plaintiff to sue you in simple negligence. Then, once the case is proceeding and the facts come out, the Plaintiff’s lawyer can amend his court papers and add in a claim for Punitive Damages. Under the new law, judges are permitted this Amended Pleading. It is now universal. All a Plaintiff’s lawyer needs to show is that Defendant had an electronic device in their hand at the time the accident happened. The Judge will allow the motion to amend for Punitive Damages and a Punitive Damage Count will be added on the Complaint against you. That is a simple way to bump up the damages from small to huge quickly. Don’t get me wrong. I think the Judge and the Plaintiff’s attorney are both right to do it! When you text and drive, you are intentionally acting in a reckless manner. This is not regular negligence where an accident happens. This is an intentionally irresponsible act while driving the most dangerous machine in history. More people are killed by cars than guns or drugs, so to drive that killing machine in a reckless way deserves a punitive damage award.
What is Plaintiff entitled to with Punitive Damages? Punitive Damages are “Punishment Damages.” You are punishing the defendant for their reckless behavior. Whether it is Facebooking or texting while driving, you are breaking the law. Punitive Damages are typically a multiple of the compensatory damages. The award is related to the underlying general damages, the amount the Defendant can pay, the behavior and so on. We usually ask for three times (3x) the underlying damage award. So if the total of the simple negligence damages (past and future lost wages, past and future medical bills, pain and suffering) is $800,000 in simple negligence, it would likely turn into $2,400,000 in damages once Punitive Damages are added to the verdict!
Here is another kicker: You can NEVER get out from under Punitive Damages – unless you pay them off. They are NOT dischargeable in Bankruptcy! How many of you have $2.4 million dollars lying around for some moderate-impact automobile accident? How many of you want to risk your parent’s home, your bike, and your sister’s doll collection? Everything gets sold at auction to pay for a car accident.
Now you see why Punitive Damages have become such a big deal in Florida. The injury lawyers who know what they are doing also know this new Ban on Texting is making it easier to score big in most car accident injury cases.
