Hit by someone texting and driving in Las Vegas? Can I file a lawsuit?
Yes. People injured by texting drivers in Nevada can file a negligence per se lawsuit against them. Victims in these Nevada personal injury cases can seek money damages for medical bills, lost wages, and pain and suffering. In addition, the texting motorist can face a civil penalty for texting while driving (NRS 484B.165).
What is a negligence per se lawsuit?
In order to win a negligence per se lawsuit under Nevada law, plaintiffs need to prove the following four elements:
There is a law or statute that exists to protect a class of persons;
The plaintiff was a member of that class;
The defendant violated the law or statute; and
The defendant’s violation of the law proximately caused the plaintiff’s injuries or damage1
Therefore, victims of a texting driver would need to show the following in a negligence per se lawsuit:
NRS 484B.165 is a traffic law that exists to protect fellow drivers, passengers, and pedestrians on or near the roadways.
The plaintiff (accident victim) was one of these fellow drivers, passengers, or pedestrians on or near the roadway.
The defendant (texting driver) violated NRS 484B.165 by handling a mobile device while operating his/her motor vehicle.
The defendant’s distraction from reading or sending a text message while driving caused the car accident which injured the plaintiff.
It is not unusual for texting drivers to violate such traffic laws as running a red light or a stop sign, swerving between lanes, or failing to yield. Such behavior is a common cause of distracted driving accidents.
Plaintiffs have the burden to prove that the defendant was a negligent driver by a preponderance of the evidence. In short, that it is more likely than not that the defendant is liable for the plaintiff’s injures.2 Typical evidence in these types of cases include:
Traffic surveillance footage showing the texting driver and auto accident;
Police department police reports;
Cell phone records showing the texting activity;
Accident reconstruction expert testimony; and/or
Medical records of the plaintiff’s injuries
It is rare for texting while driving victims to recover punitive damages.
What money can plaintiffs win?
Plaintiffs who sue for texting while driving injuries may be able to recover compensatory damages for:
Medical bills, including hospital stays, home health care, medication, and rehabilitation;
Money for property damage, such as to the plaintiff’s car or fence;
Lost wages from being too injured to work;
Loss of future earnings from being too injured to be able to work;
Pain and suffering, which is often the highest cost – especially if the accident caused serious injuries
The majority of accident cases resolve with a settlement between the personal injury attorney and the defendant’s insurance company adjuster. If the defendant is uninsured, the plaintiff may be able to recover money by filing an uninsured motorist insurance claim.
If the case goes to trial, the judge will probably not award punitive damages – which are meant to punish the defendant as opposed to covering the plaintiff’s losses. Punitive damages are appropriate usually only when the defendant’s actions were willful and malicious, not merely negligent or reckless.3
What are the civil penalties for texting while driving?
Manually using a wireless device while driving is a civil infraction (not a misdemeanor). The punishments increase for each successive violation within a seven (7) year period:
Texting while Driving violation
Nevada civil penalty and DMV demerit points
First violation within a 7-year period
$50 and no demerit points
Second violation within a 7-year period
$100 and four (4) demerit points
Third (or successive) violation within a 7-year period
$250 and four (4) demerit points4
And if the violation allegedly happened in a work zone, the court will double the civil penalty amount. The driver’s auto insurance premiums will likely increase as well.5
Note that demerit points stay on a person’s driving record for one year. Accruing 12 or more points in one year results in a license suspension.6
Call our accident and personal injury law firm in Las Vegas, NV for legal advice.
Have you or a loved one been injured by a distracted driver? Give us a phone call or fill out our contact form. Our Las Vegas car accident attorneys offer free consultations in Clark County, including Henderson, and throughout the state of Nevada.
Disclaimer: Past results do not guarantee future results.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.