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Does Talking on a Cell Phone While Driving Constitute “Outrageous” Conduct?

Written by: on December 23, 2014 | Category: Blog | Tags:

Can talking on a cell phone while driving  a motor vehicle constitute a “reckless disregard” for the safety of others – i.e. truly “outrageous” conduct — sufficient to substantiate a claim for punitive damages? No Pennsylvania appellate decision has, to date, discussed this topic.  One Federal Court, applying Pennsylvania law, and two known Court of Common Pleas decisions (one handled by the author), have all ruled that the allegation of talking on a cell phone while driving, alone and without more, cannot substantiate a claim for punitive damages.

While talking on a cell phone while driving might, under certain circumstances, constitute negligence, the law appears to preclude the contention that doing so is the type of “outrageous” conduct needed for “punishment” damages to attach.  This approach makes sense, as it preserves the general distinction (one that is, more and more, the subject of creative attempts at obfuscation) between a “disregard” and a “reckless disregard”.  The law only allows punitive damages where conduct that disregards the safety of others rises to the higher level of a “reckless” disregard for the safety of others.  Any time one does not act as the reasonably prudent person would, one necessarily disregards safety in favor of imprudence.  If any and every disregard for safety would be deemed an “outrageous” act, punitive damages would be universally recoverable.  But, they are not.  The question that is never answered in cases where an attempt is made to transform every act of negligence into one where punitive damages are recoverable is this:  why would the law only allow punitive damages in cases of a “reckless” disregard for safety, if there was no such thing as a “plain old ordinary” disregard for same?  A “plain old ordinary” disregard for the safety of others is what the imprudent person, by necessity, always possesses.  The law calls that level of disregard “negligence”, but nothing more.  While one who is the victim of such conduct can sue to be made whole, the law does not allow affirmative punishment of an “ordinary” tortfeasor.

In Pennsylvania, talking on a cell phone while driving is not the type of conduct which can support an award of punitive damages.


Attorney Andrew H. Ralston, Jr. focuses his practice on litigation in the following areas — medical malpractice defense, insurance defense, commercial, zoning, and intellectual property.  He represents a diverse range of clientele in courts throughout Pennsylvania.  Andy is one of less than 1% of U.S. lawyers who has been certified as a Life Member of the Million Dollar and Multi-Million Dollar Advocates Forums – a designation he obtained in connection with his representation of clients in the commercial litigation arena.  In 2013, and again in 2014, he was selected to the Pennsylvania Super Lawyers Rising Stars list, a distinction reserved for no more than 2.5% of attorneys under 40 years of age in Pennsylvania.  He has been appointed by the Courts as a Discovery Master in complex litigation.

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