You know you shouldn’t do it, and chances are that you at least try to refrain from doing it. Most of us know that texting and driving is dangerous and it is definitely something that should be avoided. But how about sending a text to somebody who is driving a car? Is there any liability for sending a text message to somebody who is driving a car if you don’t know they are driving? How about sending a text to somebody whom you know is driving at the time?
While the law is clear that a driver who causes an accident because he or she was paying more attention to their phone as opposed to driving their car will be liable for the accident, up to this point the law has assigned no liability to somebody who is texting the driver from a safe location. A case that was recently filed in New Jersey seeks to change that rule. In the New Jersey case, a driver and his passenger were lawfully traveling along when they were struck by a driver who was texting at the time of the accident. Both the driver and the passenger lost their legs in the resulting car crash.
The lawsuit was initially filed only against the texting driver, but recently the complaint has been amended to also include the name of the individual who sent the text message to the at-fault driver. Not surprisingly, the texter’s lawyer is strongly opposing the notion of his client being added to the lawsuit. Specifically, the lawyer is arguing that there is absolutely no legal precedent that allows somebody who is texting from a remote location to be held liable for a traffic accident that may occur hundreds or even thousands of miles away. The lawyer for the individuals who were harmed in the accident disagrees, and has stated that although the texter was not “physically present,” he was “electronically present,” such that he should be held liable for the injuries.
An interesting issue has arisen in the case is whether or not the texter knew that the defendant driver was driving at the time that the texter sent the message. In her deposition, the texter first stated that she did not know that the defendant driver was driving at the time that she sent the text, but she later changed her tune and indicated that she “may have known.” It is obviously more likely that a texter who sends a message to somebody who is known to be driving at the time will be liable for an accident as opposed to a texter who sends a message to somebody where the texter has absolutely no idea that the person is driving at the time. However, it seems that lawyers defending individuals who send text messages have a relatively strong argument that it is incumbent on the person who receives the text message to decide if and when to read that message, and that the texter should not be held liable for the driver’s decision to reach for their phone and continue a text message conversation.