S ending text messages — known more colloquially as texting — has become one of the most popular methods of communication while traveling, as the functionality is usually included with many plans from companies which provide mobile telephone services. They take seconds to compose and send; and unlike voice communications, a reply can be sent at the convenience of the sender…
..but imagine that you are in the middle of exchanging text messages with another person who happens to be driving a vehicle — and then that person becomes involved in an accident due to a lack of concentration. Should you be liable for what happened?
Should People Who Send Text Messages to Drivers Be Liable In Case of an Accident?
Of course, the burden is on the accuser to definitively prove that you knew beyond the shadow of a doubt that you were sending text messages to someone who was driving at the time. If you did not know that the other person was driving, you cannot be held liable.
“In 2013, a New Jersey appeals court held that a text sender could be found liable to third parties for injuries caused when the distracted driver has an accident”, according to this article written by Mark Palmer of travelblawg in which courts in New Jersey and Pennsylvania have reportedly upheld text sender liability as a valid cause of action against you for third party liability due to sending text messages to someone whom you know is behind the wheel driving. “Nevertheless, the determination of knowledge is a steep hill to climb, as that appellate court was not convinced there was enough evidence to establish knowledge of the sender that her friend was driving at the actual time of the sent message (while the distracted driving was, in fact, the cause of the driver losing control and severely injuring two motorcyclists). The third party’s text message came less than 30 seconds before the accident occurred.”
This law seems to emulate the similar responsibility of a person — such as a bartender or a host of a private party — who supplies alcoholic beverages to a motorist who becomes inebriated enough to get involved in an automobile accident due to driving under the influence.
“Considering that ‘impaired drivers’ cause one-third of the traffic fatalities (over 12,000 a year), and also considering the fact that alcohol related crimes are estimated to cost over $200 billion a year, it’s a wonder that states have not criminalized the act of serving alcohol to inebriated patrons”, according to this article written by Rich Stim of Driving Laws. “Actually, they have.”
It is no secret that being engaged in sending text messages while driving is dangerous. This article which I wrote of why you should not send text messages while driving contains graphic videos which depict the dangers of sending text messages while driving.
Should Mobile Telephone Callers Also Be Liable?
I actually made my pledge years ago before there was any public awareness pertaining to the use of portable electronic devices while driving — and that was based on my own personal experience.
I was in Birmingham in Alabama on a business trip with a cellular telephone I borrowed from a girlfriend of mine at the time, as I did not own my own telephone. I had just completed my visit to a client and was driving down a moderately busy road when I decided to place a quick call to her and let her know that I was done with the client.
The telephone call was indeed quick, and there was no incident of which to speak; but I do recall how difficult it was for me to concentrate on driving while tapping the telephone number and speaking on the telephone itself — and it was then that I not only realized how potentially dangerous what I did was; but I also vowed to myself at that point to never do it again…
…and to this day, I have kept my promise.
However, I was on a mobile telephone call some years ago with someone whom I did not know was driving at the time. There was no background noise to indicate to me that he was driving at the time that he was speaking to me; nor did he tell me that he was currently on his way to his destination. We were discussion business when I suddenly heard him suddenly shout an expletive.
His car had just crashed into the rear end of the vehicle in front of him.
“What?!? Are you serious?!?” I asked, stunned.
“Yes,” he sighed.
“Are you okay?”
“Yeah, I’m okay,” he said with an obvious tone of resignation in his voice.
If he were an overzealous litigant, what would stop him from suing me for being complicit in causing the accident?
To this day, I do not like when I am a passenger in a vehicle where the driving is engaged in a conversation on the telephone while the vehicle is moving.
Further Analysis
“To dive deeper into the analysis,” wrote Mark Palmer in the aforementioned article, “Section 876 of the Restatement (Second) of Torts (an influential treatise on general principles of common law United States tort law) does extend such liability:”
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he(a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
Palmer related a similar test of third-party liability from Pennsylvania recently where the court “again acknowledged the valid cause of action against such ‘remote texters’ and concluded that two individuals who sent texts to the driver could be named as defendants in a civil liability case. Yet again, the degree of difficult for the plaintiff of the liability suit remains high as the element of knowledge on the part of the sender must be proven.”
Summary
Based on both my personal experiences as well as the experiences of others, I adamantly believe that drivers should reduce the number of distractions as much as prudently possible while the vehicle is in motion.
There are those people who believe that hands-free options significantly reduce the distraction factor for the driver. Articles such as this one refute that belief; although logic would dictate that hands-free options would be similar to talking to a person sitting in the vehicle with the driver; but then again, changing the frequency on the radio to listen to a different station is also a form of distraction which has led to accidents in the past as well.
I have even noticed erratic driving by drivers who are simply smoking cigarettes.
Most modern highways are equipped with rest areas — or, at the very least, a paved or grassy shoulder — where motorists can pull over to the side if mobile communication of any form with another person is a priority. Perhaps a law of “text sender liability” could at least be enough to dissuade someone from knowingly sending text messages to someone who is driving a vehicle at the time; but I tend to believe that the driver has the ultimate responsibility in delaying the communication with another person until conditions are safe for the driver to do so.
I would be interested in hearing your thoughts on this issue — something about which I had not thought until I read the article written by Mark Palmer.
Photograph ©2016 by Brian Cohen.
