Active Cell Phone Use While Speeding Dials Up a Wantonness Verdict
What constitutes wanton conduct sometimes feels like a moving target in Alabama. Although the same legal standard for wantonness has been in place for many years, it is not always easy to understand its application. On February 17, 2023, the Alabama Supreme Court most recently addressed whether certain conduct by a driver constituted wantonness, and the outcome is instructive.
Tutor v. Sines and Frazier arose out of a head-on collision.
The driver, Tutor, was speeding when she looked down to change a song on her phone. When she looked up again, she was about to rear-end the car in front of her that had slowed to wait on the car in front of it to turn. She veered to the left and hit an oncoming car head-on. The Alabama Supreme Court affirmed a jury verdict for punitive damages, finding there was substantial evidence that Tutor’s use of her cell phone at the time of the collision was wanton.
Wantonness requires "the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, the injury will likely or probably result." Lands v. Ward, 349 So. 3d 219, 229 (Ala. 2021).
The court noted that when a defendant's allegedly wanton conduct would not just endanger others but also would also endanger the defendant, the evidence must support the finding that the defendant's wantonness extended to her own safety. Ex parte Essary, 992 So. 2d 5, 12 (Ala. 2007).
Based on that precedent, the court held there was substantial evidence from which the jury could have found that Tutor acted wantonly by
(1) intentionally violating the speed limit
(2) while actively engaging with her mobile phone while driving
(3) with the knowledge that her actions constituted a risk of probable harm to herself and her passengers.
The court distinguished the facts from cases involving merely distracted driving. See, e.g., George v. Champion Ins. Co., 591 So. 2d 852 (Ala. 1991) (holding that a driver was not wanton for glancing back in conversation).
The distracted driving here was evidence of wantonness because Tutor was actively using her phone to change the music – a conscious act, rather than inadvertently reacting to an external event. The court was persuaded by Tutor’s testimony that she “made the decision” to pick up and engage with her phone to change the song. Everyone in the car testified that she was using her phone at the time of impact. Her passengers had twice told her she was going too fast. One of them had even yelled at her. She knew there was a car in front of her as the road crested into a hill so that she couldn’t see the traffic on the other side. This evidence supported a finding that when Tutor decided to continue speeding and using her phone, she knew conditions were dangerous to both her and her passengers. Thus, the court held it was reasonable to conclude that her active cell phone use was not a mere distraction resulting from inadvertence, but the result of a conscious choice.
Jessica Renee Tutor v. Jack Sines and Devan Frazier, (MS. 1210037) Ala. S. Ct., Feb. 17, 2020.