August 28, 2013
Government and public interest groups have been publicizing the dangers of texting and driving, and states across the country have been outlawing the practice. And with the criminalizing of texting while driving, common law has recognized the practice as being an act of negligence that can create civil liability.
But texting is two-way communication, and very little has been discussed over what responsibilities, if any, the person conversing with a texting driver owes.
A New Jersey appeals court has weighed in on that issue with a ruling yesterday. In it, the court held that “the sender of a text message can potentially be liable if an accident is caused by texting.”
However, this liability only extends “if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”
The facts of the case are tragically typical of texting while driving cases: an 18 year old male driving a pick-up truck crossed the double center line of the roadway into opposing traffic. The truck collided with a husband and wife on a motorcycle traveling the opposite direction, and both of the motorcycle riders lost their left legs as a result of the accident.
The case against the driver was settled out of court; this case was against the 17 year old female who was texting with the driver at the time of the accident.
It’s important to note that, even though the court ruled that senders of text messages to drivers could be liable for negligence, it did not find the young woman in the actual case to be liable, and here’s why.
The court held that one who sends a text message to someone who is driving is not liable only by a showing that the sender knew the recipient was driving at the time.
Instead, the court ruled that the sender need also know or have “special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle.”
To the court, it is foreseeable that a driver “who is actually distracted by a text message might cause an accident and serious injuries or death.” However, the law assumes that a driver will obey the law and not read the text message while driving.
In other words, it’s “not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text.”
Nevertheless, if the sender knows that the recipient is both driving and will read the text immediately, “then the sender has taken a foreseeable risk in sending a text at that time.”
The court held that the sender would be liable for the distraction because the sender “has knowingly engaged in distracting conduct.”
This “distracting conduct” refers to an analogy used by the court in discussing the text sender liability.
New Jersey case law has held an automobile passenger liable for both obstructing the driver’s view and additionally for “urging the driver to take his eyes off the road and to look at a distracting object.”
Liability attaches in the latter scenario when “the passenger’s conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger’s actions.”
Thus, the court found that the text sender is liable when texting a person who is then driving, knowing that the driver will immediately view the text.
According to the court, the plaintiffs in the actual case did not present sufficient evidence to demonstrate that the young female sender of the texts knew that the recipient would read the text while driving.
Since the actual content of the text messages was not available to the litigants, it isn’t terribly surprising that the plaintiffs were unable to document that the sender knew that the recipient would read the text while driving.
Of course, the way that the law is structured now, it is quite difficult to obtain the actual content of text messages, either from a phone or from the wireless carrier itself.
The owners of the phone – the ones party to the text conversation – would not want to leave incriminating evidence on their respective phones; and that’s assuming that these individuals actually save their old text messages to begin with.
As far as the carriers are concerned, some store the content of text messages for a matter of months while others simply do not store them at all. Thus, in only a very narrow percentage of cases will the content actually be discoverable.
And without the content of the messages, assigning liability to a text sender is a very uphill battle.
Of course, the law could always change to require carriers to maintain their records for longer periods of time, but with the backlash in recent months against government spying, that doesn’t seem that likely right now.
There is, however, another mobile form of communication that this could apply to: email.
Individuals are able to send and receive email while driving from any variety of mobile devices (iPhone, iPad, Android, Blackberry, etc). Furthermore, accessing emails stored by service providers for litigation purposes is well-established and well-practiced. And with email timestamps and wireless device location data, it is a simple matter to determine when and from where the email was sent and received.
Sending and reading emails while driving are less common than texting, but it still happens a lot regardless.
Since it appears that the current trend of public opinion heavily discouraging texting while driving will only continue (if not gain strength), it’s more likely that other states will take the same approach as New Jersey than not – meaning that we will probably see more cases like this one.
What this means, then, is that you now have one more reason why you shouldn’t send texts or emails to anyone that you know to be driving and will read your message while doing so.