Since its release earlier this month (July 2016) the Pokemon Go mobile app has generated trending news stories of player related injuries caused by distracted driving and walking. San Diego news channels reported that two men fell off a cliff in attempt to capture the virtual character. Various local police departments have increased public warnings or modified police patrols to keep up with the increased likelihood of self-injury caused by distracted users. (Burns, Steve. “Cobb Police Keeping an Eye on Pokemon Go Players.” Atlanta Journal Constitution 15 July 2016: Print.).
The increased reliance on cellular phones for communication and social connectivity has created a parallel need for regulation of cell phone activity and emphasized the duty of care owed while using these devices. Under O.C.G.A. § 40–6–241, the proper use of a wireless communication device while driving does not constitute a violation of the duty to exercise due care when operating a motor vehicle. Lindsey v. Clinch Cty. Glass, Inc., 312 Ga. App. 534, 536, 718 S.E.2d 806 (2011). While temporary distraction by a cell phone due to an incoming call may not support evidence of gross negligence to support an award of exemplary damages or negligence liability, distracted driving claims have become common place in motor vehicle and related personal injury claims. Even in light of the new avenues of conduct that may create “distraction” based negligence claims, the duty of care owed by pedestrians and drivers can equally support negligence liability or an apportionment defense.
The failure of a pedestrian to look at all or to look at a given time for oncoming vehicles can in certain circumstances constitute negligence. See Harris v. Cates, 105 Ga. App. 178, 182, 123 S.E.2d 703 (1961) (reversed on other grounds, 217 Ga. 801, 125 S.E.2d 649 (1962)). While O.C.G.A. § 40-6-21(a)(1)(A) and § 40-6-22(1) set forth a driver’s duty to a pedestrian lawfully crossing an intersection, these statutes do not nullify a pedestrian’s duty to exercise ordinary care for his own safety and avoid the consequences of any negligence on the part of others. Gaffron v. Metro. Atlanta Rapid Transit Auth., 229 Ga. App. 426, 428, 494 S.E.2d 54 (1997). Other jurisdictions have permitted defendants to present evidence of the plaintiff’s cell phone records in support of a contributory negligence defense that the plaintiff’s cell phone use might have led to inattentive or distracted behavior. Miller ex rel. Miller v. Lewis, 40 Misc. 3d 490, 497, 963 N.Y. S.2d 837 (2013). The assessment of a plaintiff’s assumption of risk is a subjective standard that examines the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence and exists as a completely separate defense of contributory negligence. Watson v. Reg’l First Care, Inc., 335 Ga. App. 740, 741, 782 S.E.2d 822 (2016). Thus, discovery of a plaintiff’s conduct around the time of a sustained injury, e.g. texting, tweeting or hunting the evasive Pokemon character, may be critical to establishing evidence to support a request for apportionment for a plaintiff’s contributory negligence or preserving a defense of the assumption of risk.
The mere fact that a party was in possession of a cell phone at the time of the accident, without any witness testimony as to it being used at that time, would not expand the scope of permissible discovery. Courts may be wary of committing reversible error in charging a jury on a plaintiff’s contributory or comparative negligence when there is no evidence of such negligence. Metro. Atlanta Rapid Transit Auth. v. Morris, 334 Ga. App. 565, 569 (779 S.E.2d 726)(2015). A court however may be inclined to give the jury an instruction to apportion damages according to its determination of the percentage of fault when the defendant presents supportable evidence and defense theories from which the jury could conclude that the plaintiff was negligent. See Clark v. Rush, 312 Ga. App. 333, 334, 718 S.E.2d 555 (2011). Fact investigation into other sources may be sufficient to support discovery requests for the evidence supporting a distracted pedestrian defense. Witnesses may testify that they saw the driver using the phone or computer. Responding police officers or even tow truck drivers can provide testimonial evidence that a cell phone device was open, placed near the claimant driver or transmitting upon their arrival to the scene.
The release of new cell phone applications will not provide a basis for broad sweeping discovery or fishing expeditions into a plaintiff’s cell phone records or data use history. However, distracted driving theories of recovery should no longer be seen as a defense hurdle to be overcome. New technological developments and a claimant’s self-tracking of his or her movements and activities in gaming applications, snap chats and twitter feeds may now provide a new evidentiary basis to support contributory negligence and assumption of risk defenses for a claimant’s failure to keep a proper lookout.