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It’s Beyond Dispute – Cell Phones And Driving Don’t Mix

I am currently prosecuting on behalf of my client, an automobile accident case involving the use of a cell phone by another driver who we believe was sending and receiving text messages at the time of the accident.  The accident occurred when the driver crossed the centerline of a highway forcing my client to take evasive action which caused him to wind up in a ditch.

The other driver continued on her way.  An eyewitness saw the erratic driving and thought it was as a result of her being intoxicated despite the fact that this incident occurred during early morning hours.  He used his cell phone to call the police. (Ironic?)

The police eventually pulled the woman over but she passed the breathalyzer test with flying colors.  However, the  officer noticed that her cell phone was laying on the driver’s seat.  This information was added to the police report.

Since there had been no vehicle to vehicle contact and she vehemently denied that she was crossing the centerline it was going to be a tough case to win.

Her telephone records which were subpoenaed revealed, however,  that she had been sending and receiving  text messages during the time in question.  Clearly, we will now be able to show that her attention was likely not on the road.   This should make the case easier to win for my client.

It is presently legal in Pennsylvania to use a cell phone while operating a motor vehicle.  Hopefully this will change soon.  In other states, it is illegal to use a cell phone while driving.  Where there is a statute this conduct is called “negligence per se” and as such a person is automatically determined to be negligent without further proof.  Unfortunately, in Pennsylvania we still must prove that not only was the defendant using the cell phone at the time of the accident but that the cell phone was preventing her from safely operating her motor vehicle.  Although, this may seem like a fine distinction to the lay person, it is crucial to prove a causal connection between the use of a phone and the actual injury in order to win.   Here is an example of just what can happen.  This avoidable accident occurred on August 14, 2009.

Please read the article in the Daily Local News from the District Attorney for Chester County Joseph W. Carroll for more proof. http://www.dailylocal.com/articles/2010/02/23/opinion/srv0000007650981.txt

Philadlephia Inquirer
Posted on Sat, Aug. 15, 2009
2 LEAVING DELCO HOSPITAL HIT BY CAR; 1 DEAD
By Mari A. Schaefer – Inquirer Staff Writer

A 20-year-old driver who police said was distracted by her iPod yesterday struck two young women – best friends – who had just walked out of Delaware County Memorial Hospital, killing one.  Archbishop Prendergast High School staffers preparing for the fall term heard the commotion and later learned the two were former students at the school.  Nicole Gallo, 19, of Clifton Heights, and Christine Bochanski, 20, of Lansdowne, left the hospital at 11:15 a.m. and were struck from behind by the car, said Michael J. Chitwood, Upper Darby police superintendent.  Gallo was killed instantly; Bochanski was stabilized at the hospital and then transferred to Crozer-Chester Medical Center. Chitwood said she was in “extremely critical condition.”  The driver, Rachel Jankins of Havertown, was treated for minor injuries at Delaware County Memorial, he said.

Chitwood said no charges had been filed but the investigation continued.  According to police, Jankins was heading south on Lansdowne Avenue when she lost control of her 2003 Hyundai Accent, crossed two lanes of traffic, traveled up onto the sidewalk for 30 feet, and struck the women. The car became trapped between a large tree and a brick wall. There were no skid marks, police said.  “Her claim is, she was reaching down for the iPod, wasn’t paying attention, and lost control of the car,” Chitwood said. He called the accident “a tragedy that happened because of stupidity and inattentive driving.”

Gallo was a 2008 graduate of Prendergast, and was a member of the Lebanon Valley College track and field team last year as a freshman.  Bochanski, also a 2008 Prendergast graduate, was a cheerleader and on the student council while at the Delaware County school.  The news spread quickly through the Prendergast community as former and current students texted one another, principal William Brannick said.  “It hit us like a ton of bricks,” said Brannick, who was still trying to reach some members of the staff. He said the two women were involved in a number of activities while at the school.

Anthony Carr, Prendergast’s track coach, said he heard the news while training with the team at a camp in New Jersey.
“In the four years [Gallo] was on our track team, she always showed up with a smile on her face,” he said.

Gallo was not tall, but never let that deter her from being a quality hurdler, he said, adding, “She was a hurdler from Day One.”  “Our girls right now are having a difficult time,” Carr said, noting that many current athletes had known Gallo and Bochanski since grade school. He said they planned to go to a nearby church to pray for both women.  Gallo “was a very hardworking, very conscientious student athlete, just the kind of kid you want on your campus,” said Rick Beard, director of athletics at Lebanon Valley. “We are deeply saddened by this news. It is tragic.”   Peter J. Hart, Esquire