Enhanced Damages for Cell Phone Use

In New Hampshire it is possible for an injured victim to seek enhanced damages from the person who caused the accident.  Enhanced damages are also called liberal compensatory damages and allow for compensation for any aggravating circumstances or conduct that caused the accident.  Such damages are in addition to traditional pain and suffering damages and are sometimes sought when an accident is caused by a drunk driver.  In order to be allowed to ask a jury to award enhanced damages there must be evidence that the person who caused the accident acted in a wanton, malicious or oppressive manner such that the accident was the result of a reckless indifference or disregard for the safety of the victim.  Recently, the New Hampshire Supreme Court upheld criminal penalties when there was evidence the defendant was using her cell phone (including carrying on more than one conversation at a time with call waiting) so extensively while driving she did not see two elderly people in a cross walk even though they were clearly visible for about 300 feet.  One of the victims died.  In order to find the defendant driver guilty of the criminal charge, the jury had to believe that the defendant’s cell phone use while driving was evidence of a reckless indifference to the safety of the victims.  As such, this case would support a claim for enhanced damages in civil cases when similar cell phone use (including texting) contributes to cause any automobile accident.  The case also raises the possibility that enhanced damages may be sought when a driver is substantially impaired or distracted for any reason and causes a similar accident.  The case is State v. Dion, N.H. Supr. Ct. Slip Op. 2011-786 (Feb. 8, 2013).  For more information about enhanced damages when drunk drivers cause accident read this article: Using Rule 404(b) to prove enhanced damages in drunk driving cases which was published in the New Hampshire Trial Bar News, vol. 32 (Winter 2010).