Pedestrian's cellular phone records admissible for purposes of establishing contributory negligence.

A Brooklyn court has held that a driver who hit a pedestrian is allowed to introduce the plaintiff's cell phone records as evidence in order to argue that the plaintiff, a pedestrian, contributed to the accident because she had been talking on the phone. The plaintiff was hit by a Duane Reade truck in December 2008. The accident rendered the plaintiff severely disabled, brain-damaged and with limited ability to speak. On her behalf, her family sued Duane Reade and the truck driver seeking damages for negligence. Defendants obtained the plaintiff's cell phone records, which revealed that she received a call that lasted until shortly before the accident, and argued that the records suggested that the phone call caused her to be distracted, and consequently, the plaintiff's negligence contributed to the accident. The court noted that no previous cases in New York had addressed the issue of whether cell phone records can be introduced as circumstantial evidence to argue that a person was distracted at the time of an accident. Thus, Justice Leon Ruchelsman drew on decisions from New Jersey and Illinois, which permit the limited use of cell phone records for the purposes of establishing contributory negligence.

Case Law Alert, 3rd Quarter 2013