Debate Forum: 3/29/16

I’m too text-y

Can/should laws protect us from our own stupidity?
By Sarah Sidlow

Word to know: petextrian.

As in, someone who is texting while walking, typically prone to walking into things like walls, parking meters, light poles and traffic.

It turns out, texting pedestrians reported more than 1,500 serious injuries in 2010, more than double those reported just five years earlier. Yet around the world, it’s a common sight.

But it isn’t just a simple text message that can prove dangerous—or fatal—to execute. Social media, emails and selfies are all part of a package of behaviors some are claiming to be a public health concern the world over.

Last September, a man was found dead at the bottom of a ravine near a waterfall in Zhejiang, eastern China. He had fallen approximately 100 feet from the top of that waterfall. His body was discovered next to his phone and a selfie stick.

The New York Times reports that more people died last year taking selfies than from shark attacks. Yellowstone National Park issued a warning about dangerous picture-taking practices after five people were gored by bison.

And in New Jersey, local government is taking it a step further.
The proposed legislation is simple enough: while crossing the road, pedestrians must join drivers in going hands free, or risk penalties including a $50 fine or 15 days in jail—or both.

Pamela Lampitt, the democratic assemblywoman who sponsored the bill, which was introduced to the New Jersey State Assembly last week, claims that as people become more distracted by their evolving personal technology, laws managing their use must evolve as well.

“Distracted pedestrians, like distracted drivers, present a potential danger to themselves and drivers on the road,” she says. “A pedestrian distracted by their device and unaware of oncoming traffic may cause unsuspecting drivers to brake suddenly or serve out of the way, creating a potentially deadline situation.”

Police in Fort Lee, New Jersey implemented a similar policy in their town in 2012, issuing $85 jaywalking tickets to pedestrians caught texting while walking. The 35,000-resident town had suffered three fatal pedestrian-involved accidents in one year, and Fort Lee Police Chief Thomas Pioli hoped the texting crackdown would make his town safer.

For many who support this legislative effort, walking in public, especially on busy streets and sidewalks, is akin to driving on public roads. If it’s illegal to text, while driving, why shouldn’t it be illegal to text while walking?

Moreover, they say, the sacrifice really isn’t all that great.

But for others, the potential law represents more than just a 15-second hands-free jaunt. This, like many propositions aimed at regulating personal behaviors, is simply another example of the government whittling away at personal freedoms, they argue.

Others are concerned that the law would be difficult to enforce, and there’s no guarantee that legislative force will make New Jersey streets safer.

Though similar laws prohibiting phone use while driving have been adopted by 46 states, currently, the proposed pedestrian bill has no sponsors in New Jersey.

Reach DCP freelance writer Sarah Sidlow at SarahSidlow@DaytonCityPaper.com

Within reason

By Tony Baker

I know, I know. It’s a stupid thing to do. But then, so is walking around a dangerous city after dark, or taking an out-of-town trip without letting someone know where you’re going first, or getting takeout at McDonald’s more than once a decade or so. And I’ve been known to do all those very stupid things on more than one occasion.

Like most everyone who engages in this sort of foolishness, I’d imagine, I like to tell myself that I know what I’m doing. That I’m perfectly capable of patting my head, rubbing my tummy and glancing away from the road for a second or two without causing a multi-car pileup. I’d never encourage anyone else to do the same, of course, and if some scofflaw playing around on their Facebook app happened to cut me off on the freeway or something I’d honk and curse their name just like anyone else.

But that’s just it, isn’t it? We all hold ourselves to a different standard than we do everyone else. Some of us might actually be harder on ourselves than we are on others, but I’m willing to bet most of us tend to give ourselves the benefit of the doubt, more often than not. If I robbed a bank, or stole cash out of the till at my place of work, I’m sure it would be because I thought I had a perfectly good reason. I’m different. I’m special. You haven’t walked a mile in my shoes so you can’t judge me, etc.

But here’s the thing: personal freedom only goes so far. My freedom to swing my fist ends at the point where it hits the other guy’s face. You can’t yell fire in a crowded theater.

And no matter how overconfident you are in your ability to engage in reckless behavior, your freedom to do so ends at the point where you wind up placing other people’s lives in jeopardy, as well.

Now, it’s easy to imagine how this could be true in the case of someone texting and driving. We all know our attention should be focused on the road when we’re behind the wheel, and we all hope the other guy knows that as well. But what about texting and walking?

If I’m walking down the sidewalk, or down a hallway, and my attention is riveted on the girl I’m crushing on’s latest Instagram post rather than on my real-world surroundings, well, it seems like the worst that could happen is I end up tripping, or bumping into someone, or walking into a wall or a closed door and giving myself a bloody nose. But when I’m standing in the middle of an intersection, that’s another story. The hapless driver who ends up running me over because I stepped out into the street without looking could end up traumatized for life (along with anyone who happens to be in the car with her, or anyone else unlucky enough to witness the incident, for that matter). If said driver swerves to avoid hitting me, he could end up veering into oncoming traffic, or losing control of his vehicle and careening into a ditch, a tree or a telephone pole.

There’s a concept in legal terminology called the Reasonable Man Doctrine. In a nutshell, it says I can’t be held accountable for the consequences of my actions if a “reasonable man” (or person, to be politically correct) could not have foreseen those consequences. If I’m smoking in bed and I set my house on fire, I’m on the hook for that, because a reasonable man could foresee that smoking in bed might result in a fire. If my neighbor’s been storing nitroglycerine in his basement and the resulting explosion ends up taking out a few city blocks, however, I’m not liable for that, since no reasonable person would assume that their neighbor might be stockpiling dangerous explosives.

This law uses the same principle. If a reasonable man can foresee that texting while crossing the street is likely to result in harmful, or even tragic consequences, then I’d say it’s fair to criminalize such activity. Researchers at the University of Alabama found that pedestrians texting while negotiating intersections were four times more likely to be hit as a result. (Other dangerous activities included actually talking on the phone, or even listening to music, while crossing). ABC News has reported that the number of texting-related injuries has doubled each year since 2006. Studies at the University of Washington and Ohio State have produced similar findings. I’d say the jury’s just about done deliberating on this one.

Reach DCP freelance writer Tony Bakerat TonyBaker@DaytonCityPaper.com

Nanny state is not needed

By Rob Scott

Those who look to our government for all the solutions to the world’s problems are making our society similar to the society in the famed book “1984.” Written by George Orwell, the story involves a government that controls everything in society for the betterment of the community. This includes “thought police” monitoring any negative thoughts society might have against the government. Essentially, the novel underlined the government as the solution to all problems for the society as a whole.

Technological advances occur every day now, and likely the latest to radically change our society is the advent of the smart phone device. The smart phone has made our lives easier, faster and more connected. Government and the law are always trying to catch up with the technological advances and its effect on the public.

We can now pay our bills, send an email, make stock exchange trades and read the latest news right from our phones and even our smart watches. I personally utilize many of these services on my iPhone, as does most of the U.S.

Along with the smart phone and all cell phones in the last decade has been the rise in communicating via text messaging. According to a Pew Research Center study in 2011, some 83 percent of American adults own cell phones and three-quarters of them, 73 percent, send and receive text messages.

A lot of folks who text, which is the majority of cell phone owners, prefer to text over talking now. The study found heavy text users are much more likely to prefer texting to talking. Some 55 percent of those who exchange more than 50 messages a day claim they would rather get a text than a voice call, according to the study.

Young adults are the most avid texters by a wide margin. Cell owners between the ages of 18 and 24 exchange an average of 109.5 messages on a normal day—that works out to more than 3,200 texts per month—and the typical or median cell owner in this age group sends or receives 50 messages per day (or 1,500 messages per month), according to Pew.

However, with texting comes the possibility of one’s attention not being focused. This has caused many government entities to pass legislation on no texting while driving. Under Ohio law, it is against the law to text while you drive. The offense is considered a secondary offense, which is a minor misdemeanor.

According to a 2012 Pew study, 23 percent of cell phone owners bumped into stuff while looking at their phones, and 50 percent of cell owners have been bumped by someone else on their own phone. While pride suffered most in those cases, more than 1,500 pedestrians landed in emergency rooms due to a cell-phone related distracted walking injury in 2010—a number more than doubled since 2005—according to a recent study from Ohio State University.

With the endless variation in how people use their phones, and phone technology changing all the time, it’s hard for our lawmakers to keep up. And for some, proposed bans raise the “nanny state” test.

Statewide bans have failed in Arkansas, New York and Nevada. Some cities have made progress—the Utah Transit Authority imposed a $50 civil fine for distracted walking near trains in 2012—including phone use. In Rexburg, Idaho, there is a ban on texting in crosswalks, and Fort Lee, New Jersey, added distracted walking to its finable violations under jaywalking. San Francisco and Oregon are using public awareness campaigns to get the word out.

Ultimately the argument needs to come down to can government provide a solution for this problem in order to make a law against it. Hypothetically, lets ban texting while walking.

There are a multitude of other distracting activities that can be done while walking. How about picking your nose while walking? Listen to music while walking? What about not texting while walking, but rather looking at directions or watching a YouTube clip while walking?

Any of these would be extremely difficult for police to enforce and specifically for the government to have the burden of proof. An example would be if someone were cited for texting while walking. The defendant could simply claim they were not texting, but rather searching for directions to the nearest coffee shop or some other defense.

Laws are in place to protect our general safety, and ensure our rights as citizens against abuses by other people, by organizations and by the government itself. The critical principle here is should we have a “nanny state” in place to protect us from someone truly being stupid or making a bad mistake. There are a number of other dangers in our world that likely need more attention than texting while walking. Many laws can be passed and police can attempt to enforce them, but that does not mean these laws are necessary.

Texting while walking is definitely a bad habit, but there is no need for a law on the books.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. He is a Kettering City Councilman, founder of the Dayton Tea Party, member of the Dayton Masonic Lodge and Kettering Rotary. Reach DCP freelance writer Rob Scott at RobScott@DaytonCityPaper.com or gemcitylaw.com.

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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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