Broward Circuit Judge Richard Eade took a somewhat novel approach to an accident blamed on a texting driver by granting a motion to allow punitive damages in a civil negligence suit.

This was a first for plaintiffs attorney Anthony Falzon of Simon, Schindler & Sandberg in Miami.  After reviewing a motion that was beefed up with extensive details and testimony about the collision, Eade wrote last week. “There is enough evidence in the record for a reasonable jury to infer that the defendant was texting at the time of the accident.”

Nissim Buzaglo was 24 years old when he was a passenger in a van traveling west on Sunrise Boulevard in Plantation on June 3, 2009. Another driver veered into the passenger side of the van and forced it onto the median, where it crashed into two trees.   Buzaglo suffered a fractured hip and legs, required extensive surgery and walks with a limp, Falzon said.

To date, Florida’s track record in reacting to the texting while driving phenomenon has been to do little.   Bills in the Florida Legislature to ban texting while driving have failed three times. Each time, the bills made progress in the Senate but were stopped in the House based on arguments there are sufficient laws to deal with careless drivers. Most recently, Senator Nancy Detert, R-Venice, sponsored SB 416 in the 2012 Legislature.   Florida is one of 11 states without a ban, according to the Governors Highway Safety Association. Three of them — New Mexico, Oklahoma and Texas — do not allow texting by drivers with learner’s permits.

The legal question of whether to allow punitive damages in civil cases where texting is blamed is in its infancy.  In what was described as a case of first impression, a Collier circuit judge last November granted a motion to allow a North Naples widow to seek punitive damages against a driver who allegedly was texting when he struck her husband. James L. Caskey Jr., 62, was on a bicycle when he was killed in 2008.

Kim Cullen, a personal injury lawyer in Winter Park specializing in auto accidents, has been advocating for punitive damages in such cases for a few years but without success. He said he routinely files motions for punitive damages in texting cases, and so do other personal injury lawyers in the Orlando area.  “It is a topic of lunchtime conversation, but I don’t know anybody in Orange County that has gotten it,” said Cullen of Cullen & Hemphill. “I can understand why judges are hesitant. It’s a pretty big deal. But I suspect judges will eventually treat it like drunk driving, where it’s not automatic.”

Eyewitness Account

“Initially, the court denied our motion because the defendant denied using her cell phone to text,” Falzon said. “Her story was she only texted at the stop light. That’s not what she told police, but under Florida law you can’t take that into evidence.”   Catrina Williamson, then 19 years old, told the investigating officer she didn’t know what happened until her head struck the side window because she was texting, according to the Plantation police report.  But to get that into evidence, Falzon had to get a witness, and one came forward.

Shelly Lippencott of Tamarac gave an affidavit stating she was next to Williamson and saw her texting at the intersection. When the light changed to green, Lippencott said both vehicles rolled forward, and “the young woman continued to text on her cell phone and swerved almost hitting my vehicle.”  Lippencott honked her horn, yelled and saw Williamson crash into the side of the van, causing it to spin out of control. She said the texting driver did not stop.   “I drove up to her and forced her to pull over, thereby preventing her from fleeing,” Lippencott stated in the affidavit. She “was still in her car texting when I approached her. I yelled at her again that she should not text and drive at the same time.”

Williamson’s attorney, Scott Cole of Cole, Scott & Kissane in Miami, did not respond to a call for comment. However, Cole maintained before Lippencott came forward that his client was not texting at the time of the accident. On the request for admission, Williamson conceded through her lawyer “that I sent a text immediately before the time of the collision without knowledge if it was ‘at the time’ of the collision.”   Before Falzon secured Lippencott as a witness, he tried to get an expert on texting while driving, but Eade wasn’t interested.

At an April 2011 hearing, the judge explained his reluctance, saying no one would require an expert witness if the driver were blindfolded.  “I don’t think at a trial, if there was testimony that someone was texting … we would need an expert to tell the jury that it’s just wrong, you can’t do that,” Eade said. “You’re too focused on texting, and you’re distracted from watching other vehicles because things can happen so quickly.”   Cullen said locating the witness was a stroke of luck because in the vast majority of such cases they are unavailable.

To date, there are too few texting while driving cases where judges granted motions for punitive damages to call it a trend. But Cullen is hoping they will step up where the Legislature has not.  “I don’t know how judges think. I don’t know it it’s a conscious effort to fill a gap,” Cullen said. “I just think they will look at it as, ‘This is a known dangerous activity, and it needs to be punished.’ “   Falzon said a trial date has not be set for his case, but he expects it to get to a jury in early 2013.