We have informing high school students and civic and business groups public that there is liability for personal injuries and wrongful deaths for a person who drives distracted and causes an accident. Part of the focus has been the epidemic of mobile device use while driving, and perhaps the most dangerous part of that is texting while driving. We have also raised the question of potential liability on the part of a person who calls or texts and causes a driver to be distracted.
Now, an appellate court has issued an important precedent setting ruling. The case involved a couple, the Kuberts, who were riding tandem on a motorcycle when they were hit by a teenager who crossed the double center-line of the road because he was texting with his teenage female friend. The Kuberts were severely injured, including each of them losing their left leg. In New Jersey, texting while driving is illegal as is hand-held cell phone use while driving. Liability on the part of the texting driver was clear; he had texted just 17 seconds before he called 911 about the accident, so the texting driver settled with the Kuberts. The remaining question was the potential liability of the young woman who was texting him (his last text right before the accident was sent in response to a text she had sent to him 25 seconds earlier).
The court answered:
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.
It also stated:
[W]e also reject defendant’s argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. 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 limited duty we impose will not hold texters liable for the unlawful conduct of others, but it will hold them liable for their own negligence when they have knowingly disregarded a foreseeable risk of serious injury to others.
Missing from the evidence before the court was the content of the text messages, so it could not be determined whether the female texter had actual knowledge that her friend was driving or had special reason to know, by prior texting experience or otherwise, that he would view her text while driving. Without this evidence to prove breach of the remote female texter’s duty of care to the public , the court affirmed a summary judgment dismissing the Kuberts’ claims against her.
So again, in terms of safety, and in terms of liability, (1) it is dangerous to use your cell phone or text while you are driving, and (2) it is dangerous to call or text someone who you know or have reason to suspect is driving.
To view the New Jersey Appellate Court decision click here.
