Struck Pedestrian’s Cell Phone Records Admissible

pedestrian-crossingEveryone knows that drivers who text and talk on their cell phones do so at their peril. Consequences range from tickets and driver license “points” to death.

But a recent decision by a Brooklyn trial court in Miller v. Lewis, 40 Misc.3d 490, highlights the dangers of cell phone use by pedestrians. (More information on this issue can be found here, here, and here.)

Aside from the obvious risk to physical safety, pedestrian cell phone use presents a litigation risk as well:  namely, that the fact of such use may be used against you in a civil suit.

Facts And Arguments For Exclusion Of Cell Phone Evidence

In this catastrophic motor vehicle accident case, pedestrian plaintiff Holly Miller was struck by a truck driven by a Duane Reade employee.

In her negligence suit against the driver and his employer, Ms. Miller sought to preclude any evidence of her cell phone records, which showed that plaintiff had received a phone call, and remained on the phone, until 11:06:33.  The earliest 911 call was (assumed to be) made at 11:07 AM – thus leaving a “gap of 27 seconds when the plaintiff had already finished her telephone call.”  Plaintiff argued that there was “only speculation that the plaintiff was on her cell phone at the time of the accident and no evidence of such cell phone use should be introduced at trial”.

The court disagreed, and allowed the evidence in.

Court Allows Inference, Not Presumption, Of Cell Phone Use At Moment Of Impact

There was “no direct evidence that plaintiff was on her cell phone and that the call ceased as a result of the accident”, and the court refused to apply the “presumption that since the plaintiff was on the phone just prior to the collision that she remained on the phone thereafter.”  Doing so would conflict with well-settled New York evidentiary law.  The “evidence, if permitted at all, will require the inference that the plaintiff remained on the phone until the moment of impact.”

The court rejected plaintiff’s argument that the gap in time was too great to permit such an inference.  Not finding any New York cases on point, the court cited a number of non-New York state court decisions for the proposition that “cell phone records which reveal calls made within close proximity to the accident may be introduced to demonstrate use and then to further argue negligence”.

The court also rejected plaintiff’s argument that the evidence should be kept out because she was (due to the accident) unable to speak.  Plaintiff could rebut the inference in other ways, such as by testimony by witnesses that they did not observe a cell phone at the scene of the accident and photographs that did not depict a cell phone.  Plaintiff’s case law failed to “support the argument that the cell phone records in this case are deemed speculative and irrelevant as a matter of law.”

The court therefore permitted defendants to present evidence of the plaintiff’s cell phone records and “further argue that such cell phone use might have led to inattentive or distracted behavior to the extent contributory negligence was possible.”

Limitations On Use Of Cell Phone Evidence

While it allowed this evidence in, the court strictly limited the extent to which it could be used.

Citing the well-settled rule that “evidence of prior similar acts of negligent conduct may generally not be introduced to establish negligence in the case at trial,” the court prohibited defendants from asking any witnesses about “texting or e-mailing while walking” or “the frequency or habits of their conduct while walking and talking on a cell phone.”

Defendants were, however, permitted to “introduce evidence that inattentiveness in any manner including cell phone use can constitute negligence” and “general evidence of those dangers.”

Limitations On Voir Dire Questions

During voir dire the jurors could “only be informed that the defendants will present, if they choose, circumstantial evidence of cell phone use on the part of the plaintiff”.  After that they could be asked “whether they could conclude the plaintiff was negligent based only upon circumstantial evidence” and “whether they could agree with the theory of the case as presented by the defendants despite the lack of any direct evidence.”

The court disallowed all other questions regarding the individual jurors’ cell phone use.

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