Yet another Oregon motorist called me who was rear-ended while stopped. The suspected reason: the other woman was using her cell phone, probably reading it or texting. She is responsible for the car damage and the personal injury to my new client, but an interesting legal question came to mind. Does the law against cell phone use apply if someone is just reading or watching video on it?
First, the driver must pay for monetary damages because of negligence whether or not she should be ticketed under the driving statutes. The negligence standard is a reasonable person standard. A reasonable person does not read or watch video while operating a car or truck. If that causes a collision, then the person is must pay for the losses she caused.
But is just reading or viewing something a traffic offense covered by the statute prohibiting cell phone use?
ORS 811.507 prohibits driving "while using a mobile communication device," unless the person is 18 or older and uses a hands-free accessory. The law defines a "mobile communication device" as a device designed to "receive or transmit voice or text communication." But many devices now provide text, voice, PLUS Internet. What if someone is surfing for sports scores or the latest news? Does ORS 811.507 prohibit that?
The answer is we do not know until a test case makes it to the courts. On one side of the argument, the law prohibits "using" the "device" with your fingers or hands. If the driver uses the device for something other than voice or text, he is still "using the device," and that seems to be prohibited. On the other hand, the statute, as a whole, refers to communication between the driver and others. One could argue that the simple receipt of information is not, strictly, prohibited.
As a practical matter, just pay attention to driving when you drive. Whether or not you violate ORS 811.507, if you hurt someone because you are texting or Internet surfing while driving, the victim has a valid claim against you.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
