Torts: The Dangers of Pedestrian Smartphone Use

According to a number of recent studies there is a type of accident that is becoming more and more prevalent, pedestrian accidents caused by using a smartphone while walking. Much attention has been paid to so-called “distracted driving” (driving while texting or using a cell phone) through ad campaigns and public service announcements. However, we should not avoid the fact that distracted walking while using a cell phone can be potentially just as risky.

Researchers at Ohio State University found that the number of cell-phone-related walking injuries treated by emergency rooms (ER) has gone up every year since 2005, while overall pedestrian injuries treated in ERs dropped during that same period of time.

University of Washington researchers studied pedestrian behavior at 20 Seattle intersections. They concluded that about a third of the people were walking distractedly walking. This included while talking, texting, listening to music, or writing email.

Researchers at the University at Buffalo in New York, estimate that texting while walking accounts for 10 percent of all pedestrian-related emergency room visits. Furthermore, they analyzed information from ER visits and found that although injuries from texting and driving are generally more serious, the injuries from texting and walking occur more often.

Finally, a research report compiled by Liberty Mutual Insurance found that 70 percent of people in the United States admit to texting and walking. One of the main reasons texting and walking is dangerous is because the pedestrian can’t see the path in front of them.

Now that we know walking and texting is not just risky but increasingly more common, the question arises: how do we lower the risks? The answer is fairly simple but it is not convenient, don’t text and walk. If you are walking and get a text or want to send a text, stop walking. It is hard to resist the urge to take your phone out while you are walking. Knowing the risks of texting and walking is the first step, and doing something about the risks is the second step.

Here in New York, use of a smartphone while walking is becoming a defense in personal injury cases. In particular, walking and texting entered the realm of personal injury law in 2009 when a Staten Island teenager fell into an uncovered sewer manhole. While that case received press coverage it did not generate any caselaw to review. In Goppel v. Chiarella, 2009 NY Slip Op 32357 (NY: Supreme Court, New York County 2009), a case where plaintiff was injured while walking in a crosswalk, the defendant was able to make an issue of fact out of the allegation that the plaintiff was using her phone while crossing the street. This was enough for Justice Wooten of the New York County Supreme Court to deny a motion for summary judgment. In 2010, in the case of Dessasore v. New York City Housing Authority, 70 AD 3d 440 (NY Appellate Div., 1st Dept. 2010), the Appellate Division of the 1st Department overturned a verdict where the jury found the defendant negligent for using his phone while walking down the stairs but also awarded him $5 million in damages. The court held that the verdict on liability was “irreconcilably inconsistent.” More recently, in 2014 the case of Mercure v. SBH Trucking, Inc., 2014 NY Slip Op 51339 (NY Supreme Court, Kings County 2014), the plaintiff’s cell phone records showed that he may have been texting when the defendant’s rear tandem tires ran over the his foot and ankle. The defendant’s claim of comparative negligence creates an issue of fact that led to the plaintiff losing their motion for summary judgment.

These days, plaintiff’s attorneys should always check their client phone records at the time of the accident before bringing suit. Likewise, defendant’s attorneys should always request plaintiff’s phone records in their discovery demands.

If you are involved are seriously injured in an accident or have any questions about potential personal injury matter, please feel free to contact an experienced personal injury lawyer at David I. Pankin, P.C. for assistance. We can be reached at 888-529-9600.

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