Texting people is extremely common. Now, one might just be liable, if you do so to someone who is driving, and causes an accident. An Appellate Court decision which has thrown principles in disarray.
Can you be held responsible for texting a driver who wrecks?
A New Jersey (NJ) Appellate Court resolution says that you just might be held liable.
The backstory
In September of 2009, Kyle Best (Wharton, NJ) was driving home from work when he crossed the double yellow line of the road and crashed his car into a couple riding a motorcycle. As a direct consequence of the collision, Linda and David Kubert each had amputations to their left legs. Their claims for compensation were settled with the 18-year-old Best, but their lawyer appealed a court decision to dismiss claims against Best’s 17-year-old friend, Shannon Colonna, who texted him shortly before the accident happen
ed.
The Kuberts’ lawyer, Joseph McGlone, thought there was enough evidence to show that Colonna was also responsible because she texted Best while he was driving. In court, McGlone stated that Colonna was “electronically present in the car” and thus, she interfered with Best’s driving. Dismissed by the court, the ruling was appealed by the Kuberts. The appeals court eventually ruled that Colonna had no responsibility. Nevertheless, the court stated: “We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know the recipient will view the text while driving. The texter has a duty to users of the public roads to refrain from sending the driver a text at that time.” According to the appellate judge’s opinion, this case did not have enough evidence to prove that Colonna knew that Best would be driving while reading the message or even that he might be driving at all.
Colonna avoided the possible “special civil responsibility” of being involved in the accident and being liable in a civil court case. Still, the decision leaves many in the legal world wondering whether it was a mistake for the appellate court to suggest someone not at the scene could be liable simply for texting someone he or she knew might be driving.
Was the Court Decision a Mistake?
If you send any sort of text message to a person you know might be driving, do you hold some kind of responsibility to discern whether the recipient will immediately read the text? When sending texts, emails, or even making calls, the normal assumption is that, if the recipient is able, he or she will read and/or answer the mobile device or phone in a responsible, law-abiding manner. One cannot be expected to know for a fact that the recipient is going to behave irresponsibly while driving. Nor can one be expected to know whether the irresponsible driver is breaking local laws, as was the case in NJ. There, it is illegal to use one’s cell phone when driving unless it is done under the clearly stated exemptions in applicable NJ motor vehicle laws.
Specifically, when messaging, the notable aspect of sending a text is that it just sits there on the device or phone until the recipient has the time to read and/or respond to the message. The recipient obviously is not obliged to respond, much less immediately.
So, is the decision about responding whilst driving solely the responsibility of the driver? Because of the NJ case, now the answer could be “No.” If the damaged or injured party can prove someone who texted a driver knew the recipient was driving and would probably respond to the text whilst driving, the one who sent the text might be ruled to be civilly liable to the damaged party. Even if not found liable in the end, there could be significant time and legal fees required to defend the texter’s case.
In Kubert v. Colonna, the Plaintiffs’ lawyer states that Colonna was “electronically present in the car”. His use of this premise attempts to prove Colonna’s virtual presence at the scene of the accident, saying that the accident was partly influenced by her. Although in the virtual world this might be a possibility, in the real world it would still call for much debate.
Let’s change the scenario: If, 30 seconds before the accident, Best got an email from his employer requesting a paper as soon as possible, was the employer “electronically present” in the car? What is the reasonable assumption? Whether or not the employer is virtually (electronically) present to distract the driver is entirely dependent on Best’s decision-making when the email is received. As long as the driver does not respond, does not touch his phone or email device, the employer would not have been present in the car. It is Best’s decision to act that is the cause of the accident.
Distracted Driving Debate
“Distracted Driving” occurs for many reasons. Texting is one. Eating and drinking, alcohol and drug use, receiving or making calls without a “hands-free” system, applying makeup or grooming, pets, and other diversions have caused many car accidents worldwide. Anything that distracts a driver could make him or her responsible for an accident and liable for civil damages. Some “distracted driving” behaviors would have criminal charges applied as well.
If a person decides to respond to a text message while driving, we believe that reasonable people would consider that to be solely his or her responsibility, just as it is with other “distracted driving” conduct. However, in the case we are discussing, the judge’s opinion poses concern about whether you could share responsibility for an accident with someone you texted or someone who texted you. Could you sue someone who texted you -- opening an investigation into whether the texter was encouraging the misuse of a cell phone by a person who was driving? If the legal requirements as written in the judge’s ruling on Kubert v. Colonna were met, the texter could be liable in a civil court claim. This might seem unfair to the texter under most conditions, but in other cases, it could seem reasonable.
Pandora and the Point of Public Safety
The obvious main concern is public safety. Motorist organizations have been concerned for years with the number of accidents provoked by mobile phone users who irresponsibly drive while using them. A growing percentage of these accidents involve texting. Countries like Australia run campaigns endorsed by “responsible driving” organizations to promote public education and fight irresponsible texting whilst driving. These campaigns primarily target drivers the same way campaigns against driving under the influence of alcohol or drugs do. They secondarily promote a sense of responsibility by people involved with the person who might be driving “under the influence” or other distractions. The campaigns attempt to convince friends and family members that they have a social responsibility to persuade motorists to avoid “distracted driving” of any sort.
Such campaigns are known to be highly effective and could be a more reasonable approach than lawsuits to the problem of texting to drivers. Campaigns against texting while driving can easily add a focus on senders who know their recipients are avid texters that would probably read and respond to messages immediately. This very “social responsibility” and duty to the users of public roads, was one of the arguments of Kuberts’ lawyers, who said that Colonna had a duty to users of public roads not to send a text message to a driver.
There is some debate whether the opinion of the NJ appellate judge will be picked up by other courts in the United States. In its 20-page opinion, the court mentioned that it researched other states’ rulings and laws and found no other legally applicable precedent. Of course, since the opinion has been written, other courts might now use the NJ position as precedent.
So has Pandora’s Box has been opened?
• A point of constitutionality now arises as to whether the Kubert v. Colonna ruling is unfair because it
interferes with people’s right to text other people freely.
• As stated earlier, it will be very difficult to determine whether there is liability by the texter.
• Having once been attempted, the strategy may open many cases to appeals.
• Regardless, such cases will continue to clog already overburdened court dockets. This will cost defendants
and tax payers millions in time, investigations and court costs, whether or not the lawsuits shed any more
light on how to deal with these matters.
This case is being discussed on legal forums in and outside of the United States. Most countries outside of the common law system are of the general opinion that the sender of a text would never be legally liable in civil or criminal court, except if a driver was actually being “provoked” to text.
Conclusion: Public Awareness
Based on our research, we highly recommend improving public awareness programs. These programs should not only focus on driving in a safe manner by avoiding distracted and/or unlawful behaviors, but also on the “social responsibility” of people who text drivers. If senders of texts are to share liability and responsibility for the outcomes of “distracted driving” accidents, public campaigns should add targeting audiences of drivers as well as all the persons surrounding drivers. Many lives were saved when in 1983 the U.S. Ad Council’s “Friends Don’t Let Friends Drive Drunk” campaign was added to the “Don’t Drink and Drive” programs. Most global societies are affected by problems resulting from texting while driving. It is fitting for them to support targeting both the persons who might be driving and those influencing drivers to be responsible.
Regardless of ongoing confusion on court rulings in matters of accidents caused by texting whilst driving, it seems safest and most cost-effective to spend money on proven success measures like public education.
