FAYETTEVILLE -- Evidence important in a lawsuit alleging driver negligence in a pedestrian's death can be considered to have been intentionally destroyed when a teen driver's cellphone was traded in for an upgrade, a Washington County circuit judge has ruled.
The lawsuit alleges that cellphone use was a factor in the February 2019 crash that killed University of Arkansas, Fayetteville student Andrea Torres.
UA police cited the driver, then 17, with using a cellphone and failing to yield to a pedestrian in a crosswalk.
In court documents filed in response to the lawsuit Reagan Garner denied using her cellphone while driving. The lawsuit, filed by a special administrator for Torres' estate, alleges that Garner broke traffic laws related to cellphone use while driving, including Arkansas Code Annotated 27-51-1504, which prohibits drivers from reading or writing texts or social media posts.
A jury trial has been set for May, with a letter opinion by Judge Doug Martin stating that "the plaintiff shall be allowed to question the defendants about the failure to produce the phone at trial."
Martin also stated that jurors may receive instructions about what inferences they are allowed to make when evidence controlled by a party in the case is not produced.
In the two-page opinion, Martin specifically referred to Arkansas Model Jury Instructions "106A and/or AMI 106." The 106A instruction states that "you may draw the inference that such evidence would have been unfavorable to that party."
Martin's opinion, dated Monday, states that for purposes of satisfying the elements of each of these instructions, "the court finds that the plaintiff has demonstrated that the evidence was material and that the destruction of the evidence was intentional."
A court filing in May by attorneys for Garner stated that the phone was "owned, controlled and paid for" by her mother, Dania Garner Austin, who also is named as a defendant in the lawsuit.
In court documents, Austin stated that "she was never notified, asked, nor requested to produce the cell phone prior to her trading it in on August 14, 2019.
"Her daughter was about to leave home to attend college, the phone was damaged and due for an upgrade, no one told her the phone might be needed, and Dania traded it in not thinking or realizing it would be a problem," the court document states.
In seeking sanctions against the defendants, attorneys submitted to the court an email dated June 18, 2019, in which Don Taylor, an attorney representing Garner, was asked to "confirm that all evidence obtained to this point has been preserved.
"This includes the vehicle Miss Garner was driving and her cell phone," the email from attorney Matt Lindsay states. On June 25, Taylor wrote back that the driver "still has the same phone," according to court documents.
Lindsay, in an email Friday to the Arkansas Democrat-Gazette, said the "family of Andrea Torres appreciates Judge Martin's careful consideration of this serious issue."
Jerry Lovelace, an attorney for Austin, did not respond Friday to an email and a phone message seeking comment about the judge's opinion.
Court records in the civil lawsuit include portions and excerpts from a deposition. Garner is asked whether it's true that she looked at her cellphone while driving.
Garner answered, according to an excerpt included in court documents: "Not with intentions to get on it. It was just down in my cup holder and lit up with a notification."
Asked later in the deposition if she looked at her phone "prior to this incident," Garner replied: "But not with intent to be playing on my phone, to -- it was literally a split second. If I wanted to change the temperature on my dials, it would have been the exact same thing."
Separate from the pending civil lawsuit, no public record exists for Garner's juvenile court hearing that a family member of Torres says took place in March 2019. Garner was not publicly identified before the civil lawsuit.
Washington County Prosecuting Attorney Matt Durrett has cited the confidentiality requirement in the state's juvenile code in declining to comment on juvenile proceedings.