Driver “talking on cell phone, looking at some papers” before accident, lawsuit alleges

We all know that police in Ontario are cracking down on distracted drivers, particularly those handling cell phones or texting while driving.   But now a private motor vehicle accident lawsuit is alleging that a driver was distracted because of cell phone use immediately prior to an accident.

The accident involved four vehicles and was described as a “chain-reaction rear-end collision.”  Two of the drivers commenced a lawsuit against one Basso.  Basso alleged that one of the other drivers, Usselman, was “driving beside him in the passing lane, talking on a cell phone, looking at some papers.”  Basso alleged that Usselman made a fast lane change, cutting off Basso and causing him to collide with the rear of Usselman’s vehicle.

Usselman’s cell phone records showed that he had indeed been on the phone around the time of the accident.

Usselman moved for summary judgment, arguing that a trial was not needed as it was clear that Usselman should not be liable in any way.  He stated in his affidavit that at no time in the 1/2 km drive before the accident was he talking on his cell phone.  The court refused to grant summary judgment, stating that there were issues of credibility that required a judge to hear from all of the witnesses and decide whether Usselman cut Basso off and whether Usselman was talking on his cell phone.

This case demonstrates that distracted driving due to cell phone use might result in more than a ticket: it might result in a lawsuit and possibly a damages award.  The case provides another jusitification for employers implementing a distracted driving policy.

Cucullo v. Basso, 2013 ONSC 5870 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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