When walking and talking on a cell phone is dangerous

It was just after 12 a.m. on a Saturday morning. According to the Monroe County Sheriff's Office, a 37-year-old man was reportedly walking southbound on Telegraph Road within the travel lane while using a cellphone. A vehicle driving southbound on Telegraph struck and killed the walking and talking man; he was pronounced dead at the scene. Police stated that neither speeding nor alcohol appeared to be factors in the crash. While the investigation continues, it raises the question as to the extent to which the man contributed to his own death by being distracted by talking on his cellphone.

While the dangers of drivers being distracted by cellphone use or texting are well known, a study by Ohio State University researchers has suggested that distracted walking actually causes more injuries than distracted driving. The study revealed that so-called distracted walking causes two million injuries to pedestrians each year. A wide variety of injuries were reported. One 14-year-old boy walking down a road while talking on a cellphone fell eight feet off a bridge into a rock-strewn ditch, suffering chest and shoulder injuries. A 23-year-old man was struck by a car while walking on the center line of a road and talking on a cellphone. He was fortunate to have only injured his hip. In the case of the unfortunate man walking along Telegraph Road, the consequences were deadly.

If a person contributes to his or her own injury or death by being a distracted pedestrian, can the driver be found liable for damages? The legal principle of pure contributory negligence states that if a plaintiff is found even remotely responsible for his or her own injury for whatever reason, the plaintiff cannot receive any damages from the defendant driver, even if the negligence is only 1 percent.

Michigan, however, uses a system referred to as the modified comparative negligence — the 51 percent rule. An injured party can recover if it is determined that his or her fault in causing the injury does not reach 51 percent. If a plaintiff's fault is 51 percent or more, he or she recovers nothing for noneconomic damages such as pain and suffering and only recovers for his/her economic damages such as work-loss damages that occur three years after the accident. The trier of fact must determine the percentage of the total fault of all persons that contributed to the death or injury and the plaintiff is assigned a percentage of fault and if the plaintiff's fault is assessed at less than 51 percent, the noneconomic judgment amount is reduced by an amount equal to the percentage of fault assigned to the plaintiff.

Comparative negligence is an affirmative defense and obviously is up to a judge or jury to decide. But the advice of an attorney experienced in automobile accident litigation is important to evaluate any potential claim for liability. If you find yourself in such a situation, seek out an experienced Michigan attorney to adequately evaluate the circumstances of your case.