In a case that could convince businesses to tell their employees to hang up their cellphones while driving, a Georgia woman won a $5.2 million settlement from a paper company whose employee caused an accident while talking on a company cellphone.
The plaintiff’s attorney, Katherine McArthur, said that proving liability was fairly straightforward, but the cellphone element was essential to winning a larger settlement. The key, she said, was creating a solid case that the defendant’s use of her company cellphone should be considered “unreasonable” under Georgia’s cellphone statute, which prohibits any excessive distraction while operating a vehicle.
Because both the car and the cellphone were property of the company, it would then be relatively easy to show that International Paper Co. should be held responsible for the damages as well.
“In a lot of these cases, there is the issue of a person in their vehicle, on their way to work or lunch and they happen to retrieve a voicemail for work,” said McArthur. “In this case, [the defendant] was clearly on the job. In this case, she came up behind [the plaintiff] and never even saw her until she was one car length behind her.”
Defense attorneys did not respond to phone calls seeking comment. Elements of misconduct In 2006, the plaintiff, Debra Ford, was driving west on Interstate 16 when she was rear-ended by a company sedan driven by Vanessa McGrogan. The collision pushed Ford’s car onto its side, sliding along the asphalt with Ford’s arm pinned between the road and the car.
According to her deposition, her injuries required multiple surgeries, skin grafts and muscle harvests in an attempt to save the arm. The procedures failed and doctors were forced to amputate almost up to her shoulder.
The debate during settlement negotiations focused on whether McGrogan was actually on the phone at the time of the accident. According to the call records, there was a two-minute gap between calls, and a study conducted at the University of Utah found drivers using cellphones are more impaired than those driving drunk. The accident allegedly occurred during that window.
The defense maintained that McGrogan hung up her phone before getting on the Interstate. A passing truck driver, however, refuted that claim. “She had the phone up to her head, and even she testified she didn’t remember the last mile [before the wreck],” said McArthur.
Such a memory lapse is not unusual, according to David Strayer, Ph.D. of the University of Utah, who has conducted research on the phenomenon of “inattention blindness” caused by cellphone use.
“Stayer’s study showed that cellphone use affects drivers more than if they were at .08 under the influence of alcohol,” said McArthur. “In other words, you’re more impaired using a cellphone than driving drunk.”
McArthur also argued that the defendant was negligent in setting the cruise control on her car at 77 mph in a 70 mph zone. The third part of her argument focused on the defendant’s decision to ignore her company’s cellphone policy, which requires the use of hands-free headsets while driving.
“In this case, there were all these elements of misconduct that contributed to her being liable for my client’s injuries,” said McArthur. “They dodged a bullet.”
Although satisfied with the settlement, McArthur conceded that there was a 50/50 chance that her client could have gotten a much larger verdict if she had taken the case to trial.
“Jurors get very angry over cellphone use when driving, even though studies show that over 70 percent of people who have cellphones use them in the car,” she said.
In an attempt to assess damages in the case, the defense team conducted two separate focus groups, one surveying more than 100 people. Results showed that the mean payout for Ford was between $3.3 and $3.7 million. McArthur said she also conducted a smaller focus group AP Photo/Daniel Huishizer, File AP Photo/Kiichiro Sato that suggested the award would be slightly higher. Still, she said, the numbers don’t tell the whole truth.
“Focus groups are great to answer how a jury will react, but it’s difficult for them to give an accurate value because a focus group knows what they say is not going to actually be paid,” she said.
The defense also argued for a lower award on the basis that Ford suffered no lost income and the people with very high amputations (such as Ford) rarely respond to even very advanced prosthetic arms.
“And they’re right,” said McArthur. “But our argument was she deserved a chance to try.”
The final settlement was reached three months before a trial was set to begin. Ford was awarded $5 million for past and future suffering and $145,000 for medical expenses.
“Everyone knew this was a bad case for International Paper,” said McArthur. “Some of the other awards that have gone to a jury ended up being $20 or $30 million. They dodged a bullet.”
