When a Georgia driver was using a phone at the time of a car accident and the statute of limitations has not yet expired, the legal questions are layered. There is a statutory hands-free rule that governs phone use behind the wheel, a civil law doctrine of comparative negligence that controls the damages outcome, and a set of procedural rules for filing, refiling, or reopening cases. Phone use does not necessarily extinguish a claim, but it is highly relevant to fault and to the dollar value of any recovery.
Georgia’s Hands-Free Law in Brief
Georgia’s distracted driving statute is codified at O.C.G.A. Section 40-6-241. The 2018 Hands-Free Georgia Act broadly prohibits a driver from physically holding or supporting a wireless telecommunications device with any part of the body while operating a motor vehicle. The statute also prohibits writing, sending, or reading text-based communications, watching videos that are not navigation or related to vehicle operation, and recording or broadcasting videos while driving.
Limited exceptions in the statute include reporting a traffic accident, medical emergency, fire, criminal act, or hazardous road condition; use by certain emergency or utility personnel performing official duties; and use of a device while parked. Hands-free use through Bluetooth, speaker phone, or earpiece is generally permitted, as is a single touch or swipe to initiate or terminate a call.
Penalties begin at up to 50 dollars for a first conviction and one point on the driver’s license. Subsequent convictions within 24 months carry escalating fines and points. The Department of Driver Services tracks these convictions for licensing purposes.
The Effect of Phone Use on a Civil Claim
A driver’s phone use can play multiple roles in a Georgia civil case:
- As evidence of negligence per se for violation of O.C.G.A. Section 40-6-241, when the violation contributed proximately to the injury, under the negligence per se framework articulated in cases such as Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga. App. 621 (2006)
- As evidence of general negligence supporting a breach of the duty of ordinary care under O.C.G.A. Section 51-1-2
- As a factor in the apportionment of fault under Georgia’s modified comparative negligence rule in O.C.G.A. Section 51-12-33
Where the claimant is the one who was on the phone, the phone use becomes relevant to that claimant’s percentage of fault. Under O.C.G.A. Section 51-12-33, a claimant who is 50 percent or more at fault is barred from any recovery. Below that threshold, damages are reduced in proportion to the claimant’s share of fault. Phone use does not automatically place the claimant above 50 percent; it is one factor that the jury weighs along with the other driver’s conduct, road conditions, vehicle factors, and all other circumstances.
The Georgia Supreme Court in Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), and in Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323 (2017), addressed the application of the apportionment statute, including the role of nonparty fault.
Proving or Disproving Phone Use
The factual question of whether and how a driver was using a phone is generally proved through:
- Cell phone records subpoenaed from the carrier showing call, text, and data activity around the time of the crash
- Forensic examination of the phone device, including app activity, location data, and operating system logs
- Vehicle infotainment system data showing Bluetooth or wired pairing
- Witness testimony from passengers and other drivers
- Surveillance video or dashcam footage from any source
- Statements made at the scene to officers, recorded in body camera or in the SR-13 accident report
Georgia’s spoliation doctrine, recognized in Phillips v. Harmon, 297 Ga. 386 (2015), applies to electronic evidence. Once a party has notice of potential litigation, the obligation to preserve relevant data attaches, and failure to preserve may carry adverse consequences.
Procedural Pathways Within the Limitation Window
Under O.C.G.A. Section 9-3-33, an action for injuries to the person must be brought within two years after the right of action accrues. Property damage claims are subject to a four-year period under O.C.G.A. Section 9-3-32. So long as those windows remain open, several procedural routes are available.
Filing the Initial Civil Action
A civil action is commenced by filing a complaint with the court under O.C.G.A. Section 9-11-3. Service must follow the rules in O.C.G.A. Section 9-11-4. When suit is filed near the end of the limitation period, Georgia courts apply a due diligence analysis to perfection of service, addressed in cases such as Robinson v. Boyd, 288 Ga. 53 (2010), and earlier Cambridge Mutual line of authority.
Renewal After Voluntary Dismissal
If a prior civil action was voluntarily dismissed without prejudice, O.C.G.A. Section 9-2-61, Georgia’s renewal statute, allows recommencement within the original limitation period or within six months of the dismissal, whichever is later, upon payment of costs in the original action. Senate Bill 68 (effective April 21, 2025) introduced procedural restrictions on unilateral voluntary dismissal after the defendant’s answer in certain circumstances, but did not eliminate the renewal mechanism for properly dismissed cases.
Setting Aside or New Trial
When a judgment has been entered in a related civil action, O.C.G.A. Section 9-11-60 governs direct attacks. Subsection (b) provides that a judgment may be attacked by motion for new trial or motion to set aside. Subsection (d) lists grounds for setting aside: lack of jurisdiction over the person or subject matter; fraud, accident, or mistake (or the acts of the adverse party unmixed with the negligence or fault of the movant); and a nonamendable defect appearing on the face of the record or pleadings. Subsection (f) imposes a three-year deadline from entry, with the exception that a judgment void for lack of jurisdiction may be attacked at any time. Motions for new trial follow the timing rules in O.C.G.A. Section 5-5-40 (generally 30 days from entry).
Tolling Provisions That Can Extend the Window
Several Georgia statutes alter the running of the limitation clock:
- O.C.G.A. Section 9-3-90 tolls for minors and persons legally incompetent because of intellectual disability or mental illness when the cause of action accrues
- O.C.G.A. Section 9-3-91 addresses incapacity arising after accrual
- O.C.G.A. Section 9-3-92 addresses the absence of a personal representative for an estate
- O.C.G.A. Section 9-3-94 addresses a defendant being out of state or otherwise not subject to service
- O.C.G.A. Section 9-3-99 tolls for crime victims during the pendency of related criminal prosecutions, up to six years from accrual
If the phone-related crash also led to criminal charges (for example, reckless conduct under O.C.G.A. Section 16-5-60 or homicide by vehicle under O.C.G.A. Section 40-6-393), the tolling provision in O.C.G.A. Section 9-3-99 may extend the civil window pending resolution of those proceedings, subject to the six-year cap.
Insurance Considerations When Phone Use Is at Issue
A first-party insurance carrier’s denial that cites the insured’s phone use is a contractual position and not a final fault determination. Georgia’s bad-faith statute, O.C.G.A. Section 33-4-6, provides a remedy for frivolous and unfounded refusals to pay, requiring a demand and a 60-day refusal period before the statutory penalty (not more than 50 percent of the liability or 5,000 dollars, whichever is greater, plus reasonable attorney’s fees) can be sought.
Uninsured and underinsured motorist claims under O.C.G.A. Section 33-7-11 turn on the policy form (add-on stacking, the post-2009 default unless rejected in writing) and the relative fault analysis under O.C.G.A. Section 51-12-33. Phone use by the insured does not automatically forfeit UM coverage; it is part of the fault analysis between the insured and the at-fault driver.
Summary
Phone use by a driver in a Georgia car accident is a meaningful fact, but it does not eliminate the procedural ability to file, refile, or revisit a civil case within the relevant deadlines. The substantive consequence flows through the modified comparative negligence framework in O.C.G.A. Section 51-12-33: if the phone-using driver is found 50 percent or more at fault, recovery is barred; otherwise, damages are reduced in proportion. The procedural pathways within the limitations window are set by O.C.G.A. Section 9-11-3 (initial filing), O.C.G.A. Section 9-2-61 (renewal), and O.C.G.A. Section 9-11-60 (set aside or new trial). The substantive standard of care for phone use itself is governed by O.C.G.A. Section 40-6-241 and the general negligence principles in O.C.G.A. Section 51-1-2.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.