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Wearable Tech, the Car, and the Law - More Devices, More Questions

June 24, 2015

As any devoted smartphone user knows, it is hard to part with our electronic devices, whether we are making dinner, catching up with friends, or watching our favorite TV show.

With technology steadily making its way into every aspect of our lives, driving is no exception. The list of electronics that we bring into the car now includes everything from iPhones, Androids and other smartphones, to wearable tech like Fitbits and new electronic watches, along with countless products specifically designed for car use, including mapping apps and tools that monitor our driving performance.


Unfortunately, technology can be as distracting on the road as it is at the dinner table. Texting and driving has become a major public danger: according to the Department of Transportation, cell phones are involved in 1.6 million auto crashes each year, causing a half million injuries and taking 6000 lives.


This potential for destruction, coupled with the popularity of portable tech, leads to an extensive list of legal issues surrounding the use of electronics in the car – with many concerns going far beyond the typical texting and driving discussion.

Smart Watches – OK in the Driver’s Seat?


One topic that is currently interesting lawyers and lawmakers is the legality of driving while using a smart watch, such as the new Apple watch.

Apple’s latest addition to the market allows owners to make calls, text, go online, and perform other tasks that require the use of cellular data, all on their watch. With these smartphone-like capabilities, the Apple watch could potentially be subject to the same distracted driving laws as cellphones, tablets, and other devices.


According to the Delaware Code, “no driver shall operate a motor vehicle on any highway while using an electronic communication device while such vehicle is in motion,” whether to text, make a call, or post a photo to social media. Based on the language of the law, the Apple watch would almost certainly fall into the category of an “electronic communication device.”


The issue then becomes whether the watch qualifies as a hands-free device, which a driver is permitted to use in Delaware and which is defined as a device that has a feature, like a bluetooth headset or speakerphone, “by which a user engages in a call without the use of either or both hands.”


The answer is not quite clear – while you do not necessarily need your hands to make a call on an Apple watch, users report that it is necessary to hold the watch up to your mouth while speaking, which would remove a driver’s hand from the wheel in the same way that a cellphone would. Plus, because hands-free devices are only covered while a driver is “engaged in a call,” sending texts and performing other tasks on a watch would arguably be against the law whether the Apple watch is considered hands-free or not.


As personal injury attorneys, we are obligated to pay attention to whatever conclusions are ultimately made about the legality of using a smartwatch – or any new device – while driving.


In recent years, data from portable technology has become a vital form of evidence for many accident lawyers looking to prove fault in an accident. For example, we sometimes obtain cellphone records in the evidence discovery process to help us to argue a driver’s role in causing an accident, which determines both whether our clients can be compensated for their injuries and the amount of compensation they will receive.


Since records provided by phone companies include the exact times that a smartphone user sends texts or makes a call, we can use these documents to show that another driver was using their phone, and was therefore distracted, when they crashed with our client’s vehicle. This information serves as proof that they were at least partially at fault for the accident, and therefore will have to compensate our client.


Similarly, tools that monitor a driver’s choices on the road may also help us to show fault in an accident. Take Nationwide’s SmartRide program, which is intended to reward drivers for safe driving. Upon registration for SmartRide, you receive a small device that plugs into your car, tracking the miles you drive, the rate at which you accelerate and the days and times you are driving.


This information is typically used to determine insurance rates, but we may be able to request it from another driver to prove that they were driving recklessly when an accident occurred with our client. While this practice is not yet standard in the discovery process, it is likely that this type of request will become more common as these devices grow in popularity.

Along with using records to show that another driver is at fault, accident attorneys are also starting to discover new ways we can use our client’s electronic footprint to improve their case.


According to Forbes, one Canadian law firm is using data from the fitness tracker Fitbit to establish that a client’s physical activity has suffered as the result of an injury. The client, the columnist writes, had a history as a personal trainer and had excellent levels of fitness before she was injured. With this background, data from her Fitbit, including heart rate, activity levels, sleeping habits and distance traveled, could be used to show that her current activity levels are below normal for her.


In a field where doctors’ reports and subjective testimony are often the only tools we have to show how our clients’ injuries have impacted their lifestyle, the availability of this type of new quantitative data presents an exciting possibility for future accident cases.


Keeping Up with Tech – in the Courtroom and in the Car


As we consider the ways Fitbits and other devices could be applied in the courtroom, it is clear that fresh legal issues are arising as quickly as new devices hit the market.

While this speed can be intimidating, we can eliminate some uncertainty about technology by doing our best to stay on top of changes as they happen. As attorneys, it is essential that we are familiar with the current technological landscape so that we can protect our clients and build the best possible cases when they are injured. To put it simply – it is hard to request data from a device if we don’t know that it exists.


For non-lawyers, understanding how tech is evolving maybe even more important – by looking out for distracted driving and having conversations with our teenage children about why apps like Snapchat have no place in the driver’s seat, for example, we can take a vital step towards keeping our families and other drivers safe.


In other words, if we take a few precautions, we may not have to part with our devices just yet – even in the car.


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