Is Texting While Driving Negligence Per Se in New York?

If you’ve been hurt or have lost someone you love because a driver couldn't put down their phone, you may feel frustrated and unsure of where to turn. At Chelli & Bush, Attorneys at Law, we help injury victims in Staten Island, Brooklyn, and the greater NYC area pursue the justice and compensation they deserve after a crash. Our distracted driver accident lawyers help you understand how negligence per se in NY may apply to your texting while driving claim and provide the compassionate, strategic advocacy you need during this challenging time. 

Quick Facts

• New York law strictly prohibits the use of handheld devices and texting while driving.
• Negligence per se means that the violation of a statute serves as evidence of fault.
• To prove driver was texting at the time of a crash, it’s important to take swift legal action to preserve evidence like phone records and camera footage.
• Our Staten Island personal injury law firm has recovered more than $500 million for clients over the past five decades. 

New York Law and Device Use While Driving

New York Vehicle and Traffic Law Section 1225-d prohibits the use of portable electronic devices while operating a vehicle. This includes:



• Texting — Sending or reading text messages and emails while driving is illegal in New York.
• No-touch device handling — Drivers are not permitted to hold, touch, view, browse,  or play games on any portable electronic device while driving. Hands-free devices are required to make phone calls.
• GPS navigation — Touching or entering text on a GPS device while driving is prohibited. However, drivers may view a mounted GPS in hands-free mode.

Violations of New York distracted driving laws can result in hefty fines, points on your license, and even license suspension for multiple offenses. 

Negligence vs. Negligence Per Se in NY

Negligence requires proving that someone acted carelessly. Typically, a personal injury claim you must prove that the defendant had a duty of care, breached that duty, and that the breach caused harm to another. Negligence per se occurs when a driver violates a safety statute like Section 1225-d. The violation itself automatically establishes the duty and breach elements of a car accident claim.



For a pure negligence claim to be successful, your personal injury attorney must show that the driver was using the device at the time of the crash. However, under the concept of negligence per se, if a motorist is found to have broken the law, the actual violation serves as the legal foundation for liability. 

Evidence to Prove Texting

Some key evidence in texting while driving cases includes:

• Cell phone records detailing call and text timestamps
• App usage logs and metadata
• Vehicle event data recorder (EDR) information and telematics
• Dashcam, traffic camera, and surveillance footage
• Witness testimony
• Police reports

It’s critical to secure evidence quickly after a texting and driving accident.  Your distracted driver accident lawyer will immediately send a preservation letter to avoid the deletion of data. They may also subpoena phone records, although the scope of information available is carefully managed by the court.

Common Defenses in Texting While Driving Cases

Negligent motorists and their insurers come up with all kinds of excuses to deny liability in texting and driving accident cases. Our distracted driving attorneys are well-versed in these tactics and know how to counter them with solid evidence and compelling arguments. 

Emergencies

A driver may claim they were using their phone to contact emergency services. Although this is a specific exception under NY law, there must be evidence showing that was what they were doing when the accident occurred. 

Challenging the Texting Timeline

A defense attorney may argue that the text messages were sent before or after the crash occurred rather than at the exact moment of impact. Our team works closely with digital forensics experts who know how to pull timestamps for text messages, app usage, and social media activity from the device. This helps us prove whether the driver was interacting with their phone at the time of the crash.

Privacy Objections

A driver may cite privacy concerns to avoid turning over cell phone records. However, an experienced personal injury lawyer can specify which information is relevant to your claim by filing a subpoena with the court. 

Recovering Damages in NY Texting While Driving Claims

Each case is different, but your distracted driver accident attorney may help you recover damages such as:

• Current and future medical costs
• Lost wages
• Diminished earning capacity
• Pain and suffering
• Emotional distress
• Loss of companionship and consortium
• Property damage

If you’ve lost a loved one to a driver who was using their phone, our team can determine whether a wrongful death claim may be the best path forward for recovering compensation. 

How Negligence Per Se Impacts Damages

Proof of a traffic violation makes it more difficult to dispute the defendant’s liability. If your attorney can establish a definitive violation of the law, it can often give you greater leverage during negotiations with insurers. Juries may be more inclined to award damages if it’s proven that a defendant broke the law.

Pure Comparative Negligence in NY

It’s also important to understand New York’s pure comparative negligence rule. Even if the other driver was texting, your compensation may be reduced by any percentage of fault assigned to you. Our personal injury attorneys are familiar with insurance blame-shifting tactics and ensure your rights and interests are protected. 

Why Choose Our Staten Island Distracted Driving Lawyers?

When you’re dealing with an injury and uncertainty about the future, you deserve a compassionate legal team that treats you like a person, not a case number. With Chelli & Bush, you get:

• Experience gathering and analyzing complex digital evidence such as phone records and vehicle data.
• We have deep roots in Staten Island, Brooklyn, and the greater New York City area.  Our personal injury lawyers have longstanding relationships with local judges, court staff, insurance company representatives, experts, and other attorneys. 
• Dedicated advocacy, resources, and strategy to take on powerful insurance companies and win.
• Fifty years of experience in personal injury law, with more than $500 million recovered for our clients.

Find a Distracted Driver Accident Lawyer Near You in Staten Island

If you or someone you love has been hurt in a crash with a driver who was texting while driving, Chelli & Bush, Attorneys at Law, is here to listen and fight for the justice and compensation you deserve. To schedule a free consultation with a distracted driver accident attorney near you in Staten Island, NY, contact us or call 718-987-8444. 

Frequently Asked Questions About Texting and Driving Cases in NY

What if the other driver wasn’t issued a traffic citation?

Even without a ticket or conviction, you can still pursue a claim. Our team uses other evidence like phone records and develops effective legal strategies to prove a driver was texting and failed to act with reasonable care.

Can a driver delete messages to avoid liability?

Sending a preservation letter within days helps prevent valuable evidence from being deleted. The court may impose serious consequences if a driver deletes messages after receiving a formal notice. In some cases, deleted texts and other data can be recovered by digital forensics experts.

What if the driver was using hands free talk-to-text?

Although hands-free use of devices is generally legal in New York, you may still have a negligence-based claim if an accident occurred due to a driver’s inattention.

How much does a distracted driving attorney cost?

Our personal injury lawyers take cases on a contingency fee basis. This means no upfront costs and you don't pay any attorney fees unless we recover compensation for you.