John M. Kirby April 18, 2014

In Bostic v. Mader decided by the federal court in the Western District of North Carolina (Aug. 12, 2013), the Court addressed many important issues in motor vehicle accident cases in North Carolina. In this case, th plaintiffs were injured in a motor vehicle collision, and sued the operator and owner of the other vehicle for actual and punitive damages. The court dismissed claims regarding the failure to maintain the brakes. "[W]hile it is possible that Johanna, as the owner of the Kia, knew or should have known the condition of the Kia's brakes, Plaintiffs have stated no factual basis to indicate why it is plausible for a trier of fact to believe so." And: "Plaintiffs have not alleged that the Kia's brake failure was anything but sudden and unexpected. Because Plaintiffs have not alleged any facts that, deemed true, would lead one plausibly to believe that the Kia's brakes were faulty prior to the collision and that Johanna knew or should have known of their deficient condition, Plaintiffs have not alleged any actionable negligence by Johanna Mader."

Regarding the claim based on the driver's use of a cell phone, the court first noted that it was not clear whether the driver was simply making a call (which is legal), or sending a text (which is illegal. "While it is possible, immediately prior to her collision with Bostic, that Elyse was unlawfully texting with another person and not searching her phone for the name or telephone number of a person to call, it is equally plausible, without any additional factual information, that she could have been doing the latter. Given the competing plausibilities, the claim must fail for want of factual sufficiency." Further, the statute at issue expressly states that a violation is not negligence per se. 20-137.4A ("Failure to comply with the provisions of this section shall not constitute negligence per se or contributory negligence per se by the operator in an action for the recovery of damages arising out of the operation, ownership, or maintenance of a vehicle."). "Consequently, assuming Plaintiffs had properly pled, and could persuasively prove, that Elyse was 'texting' in violation of N.C. Gen. Stat. � 20-137.4A at the time of her collision with Bostic, such evidence standing alone would be insufficient as a matter of law to sustain a negligence verdict in favor of Plaintiffs on this theory."

This is the first case known to this author addressing the potential liability of a motorist for texting on a phone while driving in North Carolina. That portion of the opinion stating that the act of texting alone would not justify a finding of negligence seems peculiar. A motorist has a duty to keep a proper lookout, and a motorist distracted by the act of texting would presumably be negligent (assuming that this negligence causes the collision). That portion of the opinion requiring a higher pleading requirment for faulty brakes seems likewise peculiar, because the pleadings require only a short and concise statement of the claim, and at that stage of the case the plaintiff often does not have the additional information that can be obtained through discovery. John Kirby litigated many motor vehicle accident cases in North Carolina.