TEXTING TO SOMEONE YOU KNOW IS DRIVING

texting

Just when we think the world is complicated enough we learn that even if you have never set foot in an automobile and have no desire whatsoever to have a license, you could be found to have caused a car accident. How? You could be a remote texter.

We all know that texting and driving is a bad and sometimes deadly activity. Not only is it illegal to text and drive in many states, but if those actions cause the texting driver to have an accident, the driver could be facing civil and in some cases criminal damages. But what happens at the other end? What about the person sending the texts to the driver? What happens if a no longer happy couple had a major fight and one of them drives off in a huff and the other person keeps sending inflammatory texts? The driver gets angrier and angrier and finally, stops paying attention to the road, and plows into an oncoming car, seriously injuring the inhabitants. A Court of Appeals in New Jersey has just held that under some circumstances the person on the other end could be held liable for damages.

As far as I am aware, this case is the first one to bring the issue squarely before the court. The case involved a 2009 accident in which a teenage boy was driving and texting when he veered into the opposite lane and collided with a motorcycle, causing both occupants of the cycle to lose a leg. The motorcyclists sued not only the young man, but also, the woman with whom he was texting. The evidence clearly showed that the defendants had been texting each other all day and that they, like many teenagers, sent close to 100 texts to various people every day.

The Plaintiffs sued the remote texter saying that she aided and abetted the driver in his reading the text and that she had a duty toward the injured parties not to text someone who is driving. At the trial level the court dismissed the action but the Court of Appeals said the trial court was wrong, that there was a duty, but the duty was somewhat limited. In the case of Kubert v Best (NJ Court of Appeals A-1128-12T4 (2013)) the court found that while you could sue the remote texter, it would only result in liability if you could show the texter knew the driver was going to read the text while driving. There the court stated,

“We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

Going back to our hypothetical situation where the couple having the argument continue it by text after one of them leaves the house: If the remote texter sent one horrible text after the other that would not be cause to give rise to liability since the texter could believe that the driver would follow the law and not read the texts until he was someplace safe. If, on the other hand, the parties were texting back and forth while driving including texts like “You always get in that car and run away. Be a man and face your problems” Answered by “I love my car more than I love you, and it moves better, too!” and then there were a series of texts, it may show that the texter knew or should have known that the driver was reading and responding to the texts.

As in many things, it all comes down to a case by case analysis. Was this person aware that the other person was driving? Was there a reason to know that the driver would read the text while in the act of driving? In the Kubert case referred to above, the court held that there was insufficient evidence to show that the remote texter knew that the driver was going to read the text while driving and, therefore, there was no liability. You can be sure, however, that this cause of action will grow in use as more and more people make the mistake of reading or responding to texts while driving.

Here are rules to live and let live by for texting:

1. Do not text and drive.

2. Do not look at the text and begin to respond while stopped at a light or stop sign because there is too much of a risk you might continue after you start driving.

3. If you know someone is going to read and reply to your text while driving, don’t send the text.

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