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Litigation News – June 2014

June 17, 2014

Can sending a text message make you liable for a car accident?

by Rachel Hadrick and Jay DeSanto

In recent years, one of the most publicized societal issues has been the dangers of distracted driving.  In particular, state governments have been passing laws banning certain types of cell phone use while driving.  As a result, most people understand and appreciate that a driver who causes a motor vehicle accident because that driver was using a cell phone while driving can be held liable and responsible for the accident and any resulting injuries or deaths.  Until recently, however, most people had never thought about the potential liability of the person on the other end of the cell phone call or text message.  Because of a recent New Jersey case, with respect to text messages, at least, that fact may be changing.  What potential liability may a person face by sending a text message to another person who is driving?

Currently, the majority of states ban at least some form of cell phone use while driving a vehicle.  In March 2012, Pennsylvania followed the majority of other states in banning cell phone texting while driving. Pennsylvania’s anti-texting statute makes it a crime for a driver operating a moving vehicle to send, read or write a text message.  Currently, Pennsylvania law does not prohibit making a voice call via cell phone while operating a vehicle.  In Pennsylvania courts, though, drivers may be found liable for monetary damages to an injured party for an accident caused by any type of cell phone use, whether it is a phone call or a text message.  Many people, even those of us that may occasionally use a cell phone while driving, recognize the danger of distracted driving and believe that the potential responsibility for causing an accident is reasonable, understandable, and appropriate.  After all, the driver, who knows or perhaps should know of the safety risks involved, made the conscious decision to use a cell phone while driving.

What about the person on the other end of the phone call or text message?  Should that person also be liable for a resulting car accident, and if so, can they be held liable?  Many people may not have considered this potential liability or risk.  Certainly, Pennsylvania’s legislature has not passed a law explicitly making it a crime to make a phone call or send a text message to someone who is known to be operating a vehicle.  Further, Pennsylvania courts have yet to consider the issue of “sender liability,” the liability of a non-driver for making a phone call or sending a text message that distracts a driver and causes an accident.  In August 2013, however, a state court in New Jersey did consider the issue, raising the very real possibility that a sender of a text message could be held liable for any injuries and damages caused by a motor vehicle accident.

In Kubert v. Best, a case before a New Jersey state court, the plaintiffs were riders on a motorcycle who were both injured when a teenage driver steered his truck into their lane of travel and struck them head on.  An investigation later discovered that the teenage driver had been texting at the time of the accident, and that his distracted driving had been a cause of the accident.  In fact, the driver had sent a text message only a few seconds before the accident.  The motorcycle riders both suffered significant injuries and subsequently sued the teenage driver, arguing that the driver should be held responsible for his distracted driving and for causing the accident and their injuries.  They sought money damages from the driver.  As a unique and previously unheard-of twist, though, the injured motorcycle riders also sued the driver’s female friend; the friend was the individual who the driver had been texting with at the time of the accident.  The driver and the friend had been texting each other frequently the day of the accident, and it was the friend to whom the driver was sending a reply text message in the moments before the accident.

As the first court to consider this issue, the New Jersey court determined 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.”  In doing so, the court started with the reasonable and obvious premise that a vehicle passenger who actively encourages the vehicle driver to engage in illegal or reckless behavior should and can be held liable and responsible for his/her distracting conduct.  Essentially, the New Jersey court found that a person who sends a text message to another person known to be driving a vehicle is no different from a distracting passenger.  Therefore, where a sender of a text message knows or has special reason to know that the receiver will read or respond to the message while driving, the New Jersey court said that the sender could be found to have actively encouraged the negligent behavior and thus could be found negligent and themselves partially or wholly responsible for any resulting accident, injuries, and damages.  For the first time, then, a court opened the door to this idea of “sender liability.

The New Jersey court, however, was quick to limit the potential impact and scope of its determination and this new, possible avenue of liability.  Notably, an injured party would have to prove that the sender of the text message “actively encouraged” a driver to text or read a text message behind the wheel.  The court explained that it is not enough for the injured party merely to prove that the sender knew or should have known that the recipient was driving when the sender sent the text message.  Moreover, the New Jersey court found that the sender generally is permitted “to assume that the recipient will read a text message only when it is safe and legal to do so.”  Therefore, for the sender to have potential liability for any resulting accident, there must exist sufficient proof that: (1) the sender and driver engaged in a texting conversation; (2) the driver was operating a vehicle; and, (3) the driver communicated to the sender that he or she was driving.

Ultimately, there was insufficient proof in Kubert that the sender had actual knowledge that the driver was driving before she sent the message that allegedly led to the collision.  As a result, the sender of the text message avoided liability in that instance.

Despite its eventual outcome, though, the Kubert case remains significant, as it is the first case to open the door for a jury to find a sender of a text message liable for an accident caused by distracted driving.  Crucially, as the decision of a New Jersey state court, the Kubert case does not automatically apply in Pennsylvania and in Pennsylvania courts.  Questions and possibilities, however, remain unanswered and open.  Undoubtedly, sometime in the future an injured party will attempt to apply this same argument in Pennsylvania and hold the sender of a text message liable for causing an accident.  Will a Pennsylvania court adopt the same reasoning as the New Jersey court in Kubert?  If the sender of a text message can be held liable, will courts expand this line of reasoning and also find that the maker of a phone call can be held liable for a resulting accident?  What about a post to Twitter, via Snapchat, or on Instagram?

Only time will tell what state legislatures and other courts will do with these issues and how the law will develop in this area.  For the moment, though, the New Jersey court’s decision in Kubert may give some people reason to pause and think before sending a text message.  The attorneys at McNees Wallace and Nurick have significant experience with motor vehicle liability issues and regularly monitor legislative, regulatory, and judicial updates on both the federal and state levels.

© 2014 McNees Wallace & Nurick LLC
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