By AISLING SWIFT
Posted March 6, 2010 at 12:24 p.m.
NAPLES — James L. Caskey Jr., a former marathon runner, began each day at 7 a.m., riding his bicycle around his North Naples neighborhood.
But as the 62-year-old returned home just after 9 a.m. on Aug. 12, 2008, he was struck and killed by a car on Island Walk Circle.
Lawrence A. Daniels, 42, who also lived in Island Walk, was ticketed for failing to yield at a stop sign. He was found guilty after a brief trial in which his attorney suggested no one could prove he was the driver or where Caskey was. Daniels was fined and his license was suspended for six months.
But a new lawsuit raises questions about what Daniels was doing when he hit Caskey: It alleges he was texting while driving.
The lawsuit appears to be the first texting-while-driving wrongful death lawsuit filed in Collier Circuit Court.
It will begin wending its way through motions and court hearings as the Florida Legislature is considering a law banning texting — or all cell phone use while driving. If passed, Florida would join 19 other states with texting-while-driving bans.
Last month, U.S. Transportation Secretary Ray LaHood announced a federal ban on texting for commercial truck drivers.
Caskey’s widow, Margaret, is suing Daniels, a pharmaceutical rep, and Astellas Pharma US Inc., which owned the car, for her husband’s wrongful death.
The lawsuit, filed recently in Collier Circuit Court, alleges that Daniels, who was working, engaged in intentional misconduct or gross negligence, or both, by texting on his cell phone when the crash occurred Aug. 12, 2008.
“We wouldn’t have filed the lawsuit if we didn’t think we could prove the allegations,” said Caskey’s attorney, James Fox of Roetzel & Andress in Naples.
He declined to specify exactly what the subpoenaed cell phone records show.
“I think it’s common knowledge that cell phone carriers record messages sent to the minute and that 911 calls are recorded to the minute,” he added.
James Caskey was a retired high school teacher from Pennsylvania and a devout Catholic who went to church daily and wanted to volunteer or teach at Ave Maria, Fox said.
The lawsuit contends Daniels was texting and intentionally took his eyes off the road, causing the crash. His conduct was so reckless, the lawsuit says, that it constituted a conscious disregard or indifference to the life, safety or rights of others, including Caskey.
“Daniels knew or should have known of the wrongfulness of his conduct and the high probability that injury or damage would result, and despite that knowledge, intentionally pursued a course of conduct that was the direct, proximate and foreseeable cause of injury and wrongful death of Caskey,” the lawsuit says.
Astellas Pharma US officials couldn’t be reached for comment.
Steve Grogoza, a defense attorney who represented Daniels in a traffic court trial, contended Caskey may have been in the wrong lane.
“Nobody knows what side of the road he was on,” Grogoza said of Daniels.
There was no evidence of texting in the trial, Grogoza said, because that wasn’t part of the Florida Highway Patrol investigation.
“The witness who saw the accident was over 100 feet away. When that driver got there, the biker was under the car. They moved the body, they moved the car, they don’t know where everything was,” Grogoza said of investigators.
Highway Patrol officials who handled the case were unavailable for interviews about their investigation.
Caskey’s lawsuit is before Collier Circuit Judge Hugh Hayes. The defendants haven’t filed an answer yet and there are no hearings set.
Highway Patrol reports say Caskey was bicycling north on Island Walk Circle, approaching Inagua Way, where Daniels lived. Daniels, who said he stopped at the stop sign on Inagua Way, told Trooper Justin Close he looked both ways and turned left, south on Island Walk Circle, and didn’t notice Caskey on the unusual three-wheel recumbent racing bike. He hit Caskey’s right side, knocking him over and dragging him and the bike for 5 feet and 2 inches under his car.
Caskey, who wasn’t wearing a helmet, suffered skull fractures and was flown by medical helicopter to Fort Myers to Lee Memorial Hospital, where he was pronounced dead.
At a trial on Dec. 2, 2008, Collier County Judge Rob Crown asked the other driver, Brandt Myers, if he saw anyone else driving Daniels’ car. He hadn’t.
The judge questioned other witnesses — deputies, the trooper and Highway Patrol traffic homicide investigator Juan Quintana. He found Daniels guilty. There is no prosecutor in a traffic trial.
Crown fined Daniels $1,000, plus $78 in court costs, and suspended his license six months. Within days, Grogoza filed motions to vacate the judgment and sentence and sought a rehearing. On Jan. 15, days after Daniels paid his fine, the judge denied both.
It wasn’t Daniels’ first ticket for failing to stop.
He was ticketed for that in September 2007, paid $116.20 and completed traffic school.
A pending Collier Circuit Court criminal case also involves texting while driving, although texting isn’t required for prosecutors to prove the charges against Riccardo Blas Rivas II, 17, of North Naples. He faces up to 15 years in prison if convicted of felony vehicular homicide and also is charged with seven misdemeanor reckless driving charges.
Cell phone records subpoenaed by Collier sheriff’s investigators show Rivas was texting to a friend just before a May 23 crash that killed Tracy S. Cate, 32, a mother of two.
Sheriff’s reports say Rivas was driving more than 70 mph in a 45-mph zone when he drove his pickup through a red light at Pine Ridge Road and Whippoorwill Lane, causing an eight-vehicle crash. Days before, Rivas was ticketed twice, according to court records, which show one for unlawful speed on May 6, and careless driving on May 15.
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There’s no way to determine how many Florida drivers caused fatalities while texting or using cell phones because that isn’t tracked.
However, the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System shows there were 83 Florida traffic fatalities in 2008 in which drivers were cited for inattentive, careless or improper driving — a violation that can include cell phone use.
Last month, the National Safety Council released a report that showed 28 percent of the roughly 1.6 million crashes yearly are caused by drivers on cell phones or texting.
Florida legislators hope to add a No Texting While Driving Bill in 2010. Similar bills have failed in past years.
“It’s important that we do everything we can to make sure that our fellow Floridians are safe,” Gov. Charlie Crist said in November, when he endorsed a texting while driving ban. “The obvious danger of it is absurd.”
In February, state Rep. Janet Long, D-Seminole, and Sen. Paula Dockery, R-Lakeland, held a press conference to announce they had introduced identical bills in the House and Senate called the “Arrive Alive Act.”
Filed last fall, Senate Bill 328 and House Bill 323 also involve e-mailing, instant messaging, paging or a command to access an Internet page. They’re among several bills pending involving cell phone use while driving.
Studies back the necessity for such legislation, especially as texting increases. The International Association for the Wireless Telecommunications Industry found that about 385 billion texts were sent in the first half of 2008, compared with more than 740 billion during that same period in 2009.
When you add driving to the mix, studies show, that can be deadly.
A Virginia Tech Transportation Institute study determined truck drivers who texted were 23 times more likely to crash than non-distracted drivers.
The Federal Motor Carrier Safety Administration found texting drivers take their eyes off the road for about 4.6 seconds. That means while driving 55 mph, a driver would be crossing the entire length of a football field without looking out the windshield.
Tests by Car and Driver magazine showed sending and reading messages caused drivers to have significantly slower response times than those of drunken drivers. One drove an extra seven feet when reacting to brake lights while drunk, at 0.08 percent, the level at which drivers are presumed impaired in Florida. While sober, that same driver went an extra 41 feet while texting and 45 feet more while reading a message.