But does the improper use of a cell phone (i.e., not hands-free) that distracts a driver and causes a wreck constitute conduct sufficient to support punitive damages claim? While there is no case on point after the July 1, 2018 effective date of Georgia’s “Hands-Free” law, the answer in the majority of cases is probably not .
In Lindsey v. Clinch County Glass Co., 312 Ga. App. 534, 718 S.E.2d 806 (2011), the Court of Appeals affirmed that “in Georgia, the proper use of a wireless communication device while driving does not constitute a violation of the duty to exercise due care while operating a motor vehicle.” The court continued, “In Georgia, ‘[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.’ OCGA § 51-12-5.1(b).
In Ellis v. Old Bridge Transp., LLC, No. 4:11-CV-78 CDL, 2012 WL 6569274, at *2 (M.D. Ga. Dec. 17, 2012), the plaintiff initially focused her punitive damages claims on defendant’s use of a cell phone and on leaving the accident. However, the Court found that the plaintiff abandoned her claim regarding leaving the scene of the accident and that the question of whether proper use of a wireless device supports a punitive damages claim was previously answered. As in Lindsey, there was no evidence that the defendant “… had a history of distraction-related accidents, traffic violations, or other evidence that would show a pattern of dangerous driving or other aggravating circumstances so as to authorize an award of punitive damages.”
Again, both of these cases pre-date Georgia’s “Hands Free” statute related to distracted driving and signed into law in 2018. And while the Court cautioned in Lindsey that its “opinion in this case should not be read for the proposition that punitive damages are never available in a case where a driver causes an accident because he or she was distracted while talking on a wireless communication device,” punitive damages are authorized “when the accident results from a pattern or policy of dangerous driving” rather than a single instance. So far, there are no Georgia cases permitting the imposition of punitive damages from the improper use of cell phones while driving but, as Lindsey said: Never say never.