Texting While Driving: Proving Distracted Driver Negligence
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The distraction that causes a texting crash happens inside the other car, where no one outside it can see. A driver who does not brake, swerve, or react leaves a wreck that looks like inattention but offers no direct proof of it. Georgia’s Hands-Free Act, OCGA 40-6-241, states the rule plainly, and the harder work in an injury claim is proving what the other driver was doing. A violation of a traffic statute can supply negligence, but causation still has to be proved, and the Supreme Court of Georgia has held that phone use in a crash, without more, does not show the bad faith needed for litigation expenses.
What the Statute Forbids
OCGA 40-6-241(b) states a general duty: “A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.” Subsection (c) then lists four prohibitions that apply “[w]hile operating a motor vehicle on any highway of this state.” No individual shall:
- “Physically hold or support, with any part of his or her body” a wireless telecommunications device, although that exclusion does “not prohibit the use of an earpiece, headphone device, or device worn on a wrist to conduct a voice based communication,” or a stand-alone electronic device;
- “Write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data,” except for “[a] voice based communication which is automatically converted by such device to be sent as a message in a written form” and use of the device “for navigation of such vehicle or for global positioning system purposes”;
- “Watch a video or movie” on such a device, other than navigation data; or
- “Record or broadcast a video,” except with devices used “for the sole purpose of continuously recording or broadcasting video within or outside of the motor vehicle.”
The prohibitions do not apply while reporting a traffic accident, medical emergency, fire, or an actual or potential criminal act, or road condition causing an immediate and serious hazard, or “[w]hile in a motor vehicle which is lawfully parked” (OCGA 40-6-241(g)). A first conviction carries a fine of not more than $50.00, a second within 24 months not more than $100.00, and a third or later not more than $150.00 (OCGA 40-6-241(f)(1)).
Negligence Per Se and Its Limits
In a civil claim, a violation of a safety statute can supply the duty and breach, but the plaintiff must still prove that the violation caused the injury. Williams v. Calhoun, 175 Ga. App. 332 (1985), arose from a collision at an intersection where the defendant failed to stop at a stop sign. The defendant had not answered requests for admission, and the trial court granted partial summary judgment on liability. The Court of Appeals reversed. Failing to stop at a stop sign and failing to yield were breaches of specific standards prescribed by law, the court said, but establishing negligence per se did not keep the defendant from raising an affidavit-supported defense of accident; the defendant had said the car skidded on wet pavement. The court also relied on an earlier Supreme Court decision, Buckhead Glass Co. v. Taylor, 226 Ga. 247 (1970), for the point that even where a plaintiff relies on negligence per se, whether it proximately caused the injury is ordinarily a jury question.
In Love v. McKnight, 321 Ga. 196 (2025), the trial court denied the defendant’s motion for partial summary judgment on the plaintiff’s negligence per se claims, which included driving while distracted, and the defendant did not challenge that ruling.
The Proof Problem
Love shows how the proof looks in practice. Traffic on I-20 in DeKalb County was slowing. The plaintiff stopped, and the defendant, following closely, “forcefully hit” the plaintiff from behind. The plaintiff could not see what the defendant was doing inside the vehicle, but believed the defendant was distracted because the defendant was “coming pretty fast” when other vehicles had already stopped. There was evidence that during the 20 minutes the defendant spent driving that morning the defendant “continuously made and received phone calls.” The defendant was cited for following too closely and pleaded guilty.
| Evidence in <em>Love</em> | What it showed | What it did not settle |
|---|---|---|
| The plaintiff's account | The defendant "looked distracted right before the collision" | The plaintiff could not see inside the defendant's vehicle |
| Cell phone records | The defendant was using the phone "during or right before the collision," according to the trial court | Whether the use was hands-free |
| The defendant's testimony | The defendant's truck had Bluetooth, and the phone was in a mount and connected at the time | Contradicted by no evidence in the record, according to the Supreme Court |
| The guilty plea | Following too closely | Nothing about phone use |
The trial court found a genuine issue of fact about whether the defendant used hands-free technology or violated OCGA 40-6-241(c), but the Supreme Court did not review that ruling, because the plaintiff did not argue that failing to use hands-free technology showed bad faith. The court said it “need not decide whether such evidence might in some circumstances constitute evidence that could be used to support a claim for litigation expenses based on bad faith.”
For example, imagine a 911 call reporting a crash logged at 3:47 p.m., and a phone record showing an outbound text at 3:46 p.m. and a data session that continues to 3:47 p.m. The records place phone activity within a minute of the crash, and the dispute then turns on what the driver was doing with the device. Love illustrates why a record of activity does not by itself answer the question: the driver there said the phone was connected to Bluetooth in a mount.
Bad Faith Expenses and Punitive Damages
The plaintiff in Love sought punitive damages and litigation expenses. The trial court granted summary judgment to the defendant on punitive damages, and that ruling was not before the Supreme Court. The question was whether the evidence supported “expenses of litigation” under OCGA 13-6-11, which requires that the defendant “has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” The Court of Appeals had held that violations of traffic laws could show bad faith. The Supreme Court reversed. It explained that bad faith requires conduct “indicative of intentional wrongdoing or of a reckless disregard of known harmful consequences” that “must be more than mere negligence.” Traffic offenses are strict liability offenses, so “the violation of a traffic law, by itself, does not show the type of intentional or reckless conduct that has been required under the case law set forth above to demonstrate bad faith.”
On phone use, the court reasoned that under the plaintiff’s theory “every automobile accident case involving cell phone use would present a jury question as to bad faith simply because the driver could have been distracted by a phone call,” and that such a case would raise “at most, an issue of negligence.” It rejected “any interpretation of ‘bad faith’ that would allow expenses of litigation to be awarded in routine negligence cases.”
Punitive damages have their own statute and require clear and convincing proof of willful misconduct, malice, fraud, wantonness, oppression, or an entire want of care that raises a presumption of conscious indifference to consequences (OCGA 51-12-5.1(b)).
Frequently Asked Questions
Does the Act cover a car’s built-in navigation or infotainment system?
The statute’s definition of a wireless telecommunications device excludes an in-vehicle security, navigation, or remote diagnostics system, as well as radios, citizens band radios, commercial two-way radios, subscription based emergency communication devices, prescribed medical devices, and amateur radios (OCGA 40-6-241(a)(3)).
What extra limits apply to commercial truck drivers?
A person operating a commercial motor vehicle may not use more than a single button on a wireless device to start or end a voice call, and may not reach for a device in a way that takes the driver out of the seated driving position or out of a properly fastened safety belt (OCGA 40-6-241(d)).
Can a first hands-free ticket be dismissed?
A person facing a first charge of holding or supporting a device who produces in court a device, or proof of purchasing one, that would allow compliance in the future is not guilty of that offense, after affirming the privilege has not been used before (OCGA 40-6-241(f)(2)).
Does the Act apply to police officers and utility crews?
The device prohibitions do not apply to a law enforcement officer, firefighter, emergency medical services worker, ambulance driver, or similar first responder performing official duties, or to a utility services employee or contractor responding to a utility emergency within the scope of that work (OCGA 40-6-241(g)(2), (3)).
Sources and Legal Authorities
- OCGA 40-6-241(a) through (g)
- OCGA 51-12-5.1(b)
- OCGA 13-6-11 (as quoted in Love v. McKnight)
- Williams v. Calhoun, 175 Ga. App. 332 (1985)
- Buckhead Glass Co. v. Taylor, 226 Ga. 247 (1970) (as quoted in Williams v. Calhoun)
- Love v. McKnight, 321 Ga. 196 (2025)
Disclaimer
This article provides general information about distracted driving claims under Georgia law. It is not legal advice and does not create an attorney-client relationship. Phone records and device data can be lost, and the filing deadline runs whether or not the evidence has been gathered. Anyone injured by a distracted driver should consult a licensed Georgia attorney promptly about the particular situation.