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Texting While Driving March 8, 2010

Posted by Attorney Jonathan Groth in Personal Injury Law.
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 The Intentional Tort of Texting


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

The punitive damages saga has another element on the horizon.  Representative Peter Barca and others have introduced, and both chambers may soon pass, a law banning texting while driving in Wisconsin.  With this law the argument to assess punitive damages 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).  Caselaw is chock full of examples where drunk drivers, batterers and trespassers were liable for punitive damages based on choices they made.

In 2005 the Supreme Court decided the Wischer case which 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 was in intentional disregard of the workers’ rights because 1) it was an intentional act that 2) 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 as gatekeepers to allow a jury to decided whether a texting driver’s actions warrant punitive damages.   

Plaintiff’s attorneys have argued that to impose punitive damages would both serve to punish the wrongdoing of a tortfeasor and have the exemplary effect of furthering the legitimate state interest of curbing unsafe driving practices involving cell-phones.   Punishing the wrongdoer is “easy” to show.  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 maybe not for too much longer.  If the texting while driving ban is passed then there will be little difference when compared to the argument for punitive damages against drunk drivers.

First, I say “little difference” because it is against the law to drive while under the influence of alcohol and thus a legitimate state interest exists.  If and when the texting while driving ban is passed the State will have spoken and made obvious the legitimate state interest of curbing this unsafe driving practice.

Second, I say little difference because nowadays everyone is spreading the news that texting while driving is dangerous.  Milwaukee’s Sheriff 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 choses to text while driving.  That driver, I believe it is safe to argue, was aware of the dangers involved because of the billboards and, of course, our favorite son Danny Gokey.  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 driver’s 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 drunk driving?  Is it worse?

Representative Barca has been quoted as saying that texting is 6 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 will 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.   Studies are now showing that texting while driving is, in some instances, more dangerous than driving while drunk.   

It’s clear that punitive damages are available under section 895.85 if a defendant “acts with a purpose to disregard the plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded.” Strenke 2005 WI 25 para 3.  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?

Visit www.grothlawfirm.com for more information or to contact attorney Jon Groth.

Texting/Talking While Driving or Driving While Texting/Talking? August 31, 2009

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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Shouldn’t it be driving, period.  Driving while distracted is just plain dangerous.

Time Magazine had a good article about documents recently uncovered from the National Highway Traffic Safety Administration.  In short, drivers:

were faster to brake and caused fewer crashes when they had a .08% blood-alcohol content than while sober and talking on a cell phone.

In Wisconsin, if you act in an intentional disregard of others and you injure someone you can be liable for punitive damages.  That is certainly the case for repeat drunk drivers.  Why wouldn’t this apply to repeat “texters” or “talkers”?

Distracted Drivers February 12, 2009

Posted by Attorney Jonathan Groth in Personal Injury Law, Wisconsin Auto Accidents.
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I’ve emailed comments on a couple list serves about my opinion on what set of facts would allow punitive damages in Wisconsin.  In Wisconsin, the standard is set forth in the Strenke decision.

The majority opined:

In response to the issues presented, we conclude that
a person acts in an intentional disregard of the rights of the
plaintiff if the person acts with a purpose to disregard the
plaintiff’s rights, or is aware that his or her acts are substantially certain to result in the plaintiff’s rights being disregarded. Furthermore, we determine that a defendant’s conduct giving rise to punitive damages need not be directed at the specific plaintiff seeking punitive damages in order to recover under the statute.

I’ve been thinking about this language as it applies to drivers on cell phones.  The National Safety Council has a few studies about cell phone ban laws across America.  According to nsc.org:

Driver inattention is a leading cause of traffic crashes, responsible for about 80 percent of all collisions, according to the National Highway Traffic Safety Administration (NHTSA).

Check out the link and especially the videos of the drivers who are on their cell phones.   I argue that each one of those drivers were very aware of the risks of driving while on a cell phone  (this applies to driving while texting too).  If they were aware of the risk doesn’t it follow that the punitive damages law would apply to their actions?

Is that a bad thing?  Punitive damages are meant, in part, to prevent individuals and corporations from acting in a manner that will cause harm to others.  So, don’t drive while on your cell phone, or buy a bluetooth headset.

  I’d like to know your thoughts.

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in West AllisSheboygan,  Plymouth,  and Germantown.

If you’d like to submit a question or case please complete a case submission form.

Jurors, Elephants and Donkeys December 19, 2008

Posted by Attorney Jonathan Groth in Personal Injury Law.
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The Wisconsin Lawyer Magazine has a quick read entitled Politics in Civil Jury Selection.  Very interesting.

This is one of the more important parts of my job.  Who should I keep on a jury?  What questions do I ask in order to figure out who would make a good juror for a particular set of facts. Who will the defense want to keep or strike?

Alan Tuerkheimer, UW Law 2000, is a trial consultant with Zagnoli McEvoy Foley, LLC in Chicago.  The Zagnoli firm conducted a survey of mock jurors in order to determine a relationship between political party identification and damages verdicts.

Some sections that I found interesting:

The Zagnoli study found that while political leaning tends to correlate with what jurors say about damages in civil cases, it does not predict whether or how much they actually award. In other words, political leaning is related to what a juror says but not necessarily to what a juror does; thus, political party allegiance should not be too heavily relied on during jury selection.

More specifically, Republicans were more likely than Democrats to make an at fault person pay damage awards for future medical expenses.

A closer look shows that a high proportion of Democrats (86 percent), but an even higher proportion of Republicans (92 percent), would consider awarding money for future medical expenses.

Finally, when it comes to the premise of awarding punitive damages both parties were high.  Again, like I assumed Democrats were more likely to agree (92 percent agreed) but I was a little surprised that so many Republicans agreed (80 percent agreed).

I recommend the article.  I ask this of my readers.  If anyone finds similar articles about jury selection please let me know.  I like reading about this stuff.

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in Milwaukee, West Bend, New Berlin and Wauwatosa.

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A Drunk Driver Ruins the Celebration September 5, 2008

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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Once again a drunk driver ruins a party.  The Milwaukee Journal Sentinel reports that a drunk driver killed a Harley rider during last week’s 105th Harley Davidsons Birthday Celebration.  The drunk driver was about 3 times over the legal limit at the time of the collision.

The collision occurred at about 2:15pm on August 29th. She must have started drinking pretty early in the day to get that drunk before 2:15pm.  When is it ever worth drinking that much that early?  And why would you ever think of driving?

The victim is a 55 year old Michigander.

Once again the call goes out to the legislature to tighten the drunk driving laws in Wisconsin.  Hopefully, the DA assigned to this case will enforce the laws currently on the books.


$150,000.00 August 1, 2008

Posted by Attorney Jonathan Groth in Personal Groth.
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I had the privilege to help a woman injured after she was struck by a multiple drunk driver.  Luckily, her injuries were not severe.  She is still with us and doing much, if not all, of what she could do before the collision. 

The at fault insurance company did NOT exclude punitive damages.  This is rare.  Very rare.  The vast majority of the time insurance companies that write policies in Wisconsin specifically exclude any payment of punitive damages for their insureds. 

It is important that you check.  You may just find that needle in the haystack.  In this recent case it was a great benefit to my client. 

You’ve probably discovered that I don’t care for multiple drunk drivers.  If you or your attorney want assistance against a Wisconsin drunk driver that injured you feel free to call me.  I’d be happy to review the policy of insurance to see if you can obtain punitive damages from the drunk driver’s auto insurance.

By the way, don’t give up if insurance doesn’t cover punitive damages.  Make sure you check into the assets of the driver that caused the auto accident.


Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in South Beloit, Racine, Oak Creek and Wauwatosa.

2 Strikes? 4 Strikes? 6 Strikes? More? May 1, 2008

Posted by Attorney Jonathan Groth in Personal Groth.
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Who in Wisconsin’s Legislature is tough on drunk driving?  I’d like to know.

Personally, I don’t believe someone should be given the opportunity to cause a car accident after numerous convictions for drunk driving.  Isn’t that just common sense?  I think I am in the majority of public opinion on this issue.  Aren’t I?

If the majority of Wisconsin’s citizens agree then why doesn’t the Legislature do something?  Why let a drunk driver back on the road after numerous convictions?  Why not take him out of society?  A place called prison.

I admit this post is chock-full of indignation.  Recently, in Oconomowoc (Waukesha County) a “Doctor” (former M.D.: he had his license pulled for drug abuse and writing fake prescriptions) was driving while under the influence of Oxycodone, Ambien and Xanax and killed a teacher, her young daughter and her unborn child, not to mention sending others to the hospital with injuries.

The Journal Sentinel uncovered that Mark Benson had a history of driving while intoxicated dating back to 1993.  In fact, he was in court for drunk driving just a few days prior to the vehicular homicides.

Also, Mark Benson did NOT have auto insurance OR a license [UPDATE: 9-26-08 According to Mark Benson’s brother he DID have insurance].  So, I ask again, who in the legislature is tough on crime?  Will this finally be the wake up call to put drunk/intoxicated drivers behind bars?

Sadly, because the criminal system failed, the only solace for the victims of this collision may be in civil court.  The criminal court system failed by not putting Mark Benson in prison, now the family of the victims will only be able to get monetary compensation for the loss of their loved ones.  Hopefully, they will hire a personally injury attorney that IS tough on drunk drivers and does everything in his/her power to punish Mark Benson.  If anyone asks why there is a need for punitive damages just point them to this case.

Maybe … hopefully a Judge will put Mark Benson behind bars and he will pay his debt to society.  Hopefully, someone will take Mark Benson to civil court so he pays his debt to the victims.