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- Application of the Discovery Rule to Breach of Contract Claims
- Proper Procedure to Obtain Entry on Real Property of a Nonparty for Purposes of Inspection and Photographing
- Designating Unknown Responsible Third Parties: How to Properly Designate an Unknown Driver
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House Bill 62: Texting Ban and the Standard It Sets
On September 1, 2017, Texas House Bill 62 (“HB 62”) will go into effect, prohibiting reading, writing or sending electronic messages while operating a motor vehicle. In a civil action following a motor vehicle accident, if a plaintiff can prove a driver violated this law, they will no longer be tasked with establishing a duty and breach, as required in a negligence cause of action. Instead, under negligence per se, plaintiffs are relieved of proving a reasonable person would have acted differently. HB 62 sets the standard of care and plaintiffs must simply prove the violation was the proximate cause of the resulting damages.
House Bill 62
HB 62, the “texting ban,” prohibits the driver of a motor vehicle to read, write or send electronic messages while operating a motor vehicle, unless the vehicle is stopped. A first offense under this provision is punishable by a fine of $25-$99. In addition, if a violation leads to the death or serious bodily injury of another person, the defendant may be subject to a Class A misdemeanor punishable by a one year sentence and a $4,000 fine.
However, enforcement of this bill will be somewhat difficult for police officers given the multitude of affirmative defenses HB 62 provides. A defendant may assert an affirmative defense for:
- navigational use,
- music functions,
- reading an electronic message the person reasonably believed concerned an emergency,
- using a hands-free device,
- reporting illegal activity, summoning emergency help, or entering information relating to traffic and road conditions to users of the application,
- using a device which is permanently or temporarily fixed to the vehicle to relay information in the course of the operator’s occupational duties.
To be prosecuted, the defendant’s violation must be observed by a police officer or established by other evidence. This creates a hurdle for plaintiffs because HB 62 does not allow a police officer to take possession of or inspect a portable wireless device unless otherwise authorized under the Code of Criminal Procedure, the Penal Code, or other law.
Implication in Civil Suits
While HB 62 may prove difficult to enforce for police officers, it has serious implications in civil actions seeking recovery for damages incurred from a car accident. If a plaintiff can prove the defendant driver was reading or writing messages, they will not be faced with the difficulty of proving the driver owed the plaintiff a duty and the driver breached this duty. HB 62 sets the standard of due care for all drivers, and a violation of this standard will give rise to a negligence per se cause of action.
The opportunity for a negligence per se cause of action arises when a tortfeasor breaks a law which was enacted to prevent injury or harm to a certain class of people. To maintain a negligence per se claim, a plaintiff must prove:
1) the defendant violated a statute or ordinance,
2) the plaintiff was within “the class of persons which the ordinance was designed to protect,”
3) the defendant was the proximate cause of the harm.
Plaintiffs will now be able to use HB 62 to show a driver was negligent per se. HB 62 is aimed at protecting the public at large from distracted and possibly negligent drivers. Any driver who sends, reads or writes an electronic message while operating a motor vehicle is in violation of HB 62, unless one of the affirmative defenses is applicable. In a suit against a driver who has violated HB 62, a plaintiff will merely need to prove the driver was the proximate cause of their damages and the case for negligence per se is established.
While HB 62 is still in its infancy, violation of this statute will most likely be handled similarly to the court’s ruling in Moughon v. Wolf. In Moughon, a driver was found negligent per se for violating a statute which prohibited driving on the left-hand side of the road. The Plaintiff was able to adequately prove the Defendant violated a safety statute which was in place to prevent personal injury and property damages caused by car accidents. Proximate cause was established as a matter of law when the court reviewed the facts of the accident and determined reasonable minds could not differ. The driver’s failure to follow the law and stay in the right-hand lane was the proximate cause of the accident. The Defendant was not able to plead a legally acceptable excuse and, therefore, was found negligent per se.
HB 62 will effectively alter civil litigation resulting from car accidents where the defendant driver was texting, making recovery much more likely for plaintiffs. Once it is established a driver caused the accident because they were messaging on a cell phone, plaintiffs will no longer need to meet the standard of ordinary negligence, but must simply meet the lower threshold of negligence per se.
 See House Bill No. 62.
 Lopez-Juarez v. Kelly, 348 S.W.3d 10, 27 (Tex. App.—Texarkana 2011, pet. denied).
 Moughon v. Wolf, 576 S.W.2d 603, 606 (Tex. 1978).
 Id. at 604.
 Id. at 606.