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Can I Sue a Driver Who Hit Me while Texting?

Considered a form of driver distraction, texting while driving presents a great danger on the roadway and is now illegal in many states. In states with no texting laws, cities and counties often pass their own ordinances against texting while driving. The National Highway Traffic Safety Administration (NHTSA) estimates that an accident is 23 times more likely to occur when a driver is texting. What's more, in 30 percent of crashes, one of the drivers admits to texting just before the accident occurred. How many more don't admit it?

With nearly everyone texting now, incidences of texting while driving, and the resultant accidents, grow. The result is an increase in the number of personal injury lawsuits and insurance claims.

Legal Liability For Texting While Driving

Although texting while driving is not illegal in all 50 states, each state does impose a "legal duty of care" on its drivers. In short, all drivers share the responsibility of keeping America's roads safe. Intentionally engaging in distracted driving, such as driving while texting, violates this shared responsibility and is considered negligence.

In an automobile accident, liability is assigned based on factors such as negligence or recklessness. Texting drivers are guilty of negligence and typically deemed liable for an accident. This has been well established legally.

Research reveals that, at a minimum, texting distracts a driver for a minimum of five seconds. At freeway speeds, this is enough time to travel the full length of a football field. According to the NHTSA, texting while driving is more dangerous than committing DUI. These studies establish negligence, and the courts agree. Court decisions throughout all 50 states establish that texting while driving qualifies as negligence and award damages accordingly.

Damages You May Sue For in Your Texting While Driving Case

According to the courts, victims of negligent drivers are entitled to compensatory damages, like medical bills and lost wages, as well as punitive damages, if the texting driver's behavior is deemed especially egregious. Punitive damages are meant to both punish bad behavior and prevent future occurrences of said behavior.

Compensatory damages include out-of-pocket expenses, such as rental car costs. Medical expenses include any treatment required as a result of the accident, including ER visits, physical therapy, and prescription medications. Property damages include car repairs or replacement of the vehicle if it is determined to be a total loss. Pain and suffering is more difficult to quantify, as it attempts to measure the pain and discomfort the victim suffered, and then attach a monetary value to that suffering. Additionally, you may claim emotional distress, such as fear and anxiety, as well as loss of enjoyment and loss of consortium.

How Do I Prove The Other Driver Was Texting?

In order to make a successful claim for damages, you must prove the other driver was negligent and that said negligence caused your damages. In this instance, you want proof that the driver was texting while driving. If you saw the driver texting just before the accident, mention this to the officer so that it may be included in the police report. Your attorney may be able to find proof in other ways.

State Laws Regarding Texting while Driving

As stated above, each state has its own laws, or lack thereof, surrounding texting while driving. We provide four examples below.


Arizona has no statewide ban on texting while driving. However, different localities within Arizona do have such bans. For example, in both Phoenix and Tucson, texting while driving comes with a $100 fine that increases to $250 if the texting driver causes an accident.


California passed a statewide ban on electronic wireless communications, which includes "using an electronic wireless device to write, send, or read a text-based communication." Drivers in violation of this law receive a fine of $20 for their first offense and $50 for each infraction after.

New York

New York drivers face up to $150 in fines for sending a text message while driving, plus mandatory surcharge fees of up to $85. They also receive three points against their driver's license.


Wyoming prohibits texting while driving with three exceptions:

  1. While legally parked
  2. To contact emergency response vehicles (i.e., dial 911)
  3. While using hands-free or voice-operated technology

Schedule a Free Consultation

If you were involved in an accident with a driver who was texting, schedule a free consultation with a personal injury lawyer to discuss your case. He or she will advise you on the merits of your case and help set reasonable expectations as regards possible damages.

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