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Posted On August 29, 2013 Accident Tips & Prevention

Text Message Could Put You on the Wrong Side of a Lawsuit – When You’re Not Even Driving

You don’t have to be the one behind the wheel to get in trouble for texting while driving – at least, not according to a New Jersey appeals court. CNN reported that judges ruled that if an individual sends text messages to a driver who then causes an accident while texting, the original sender could be held partially responsible for the accident.

There are qualifiers to this, of course. The judges don’t expect text message senders to be omniscient, to know at all times whether or not every person they text is driving. “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,” appeals court judges said, according to CNN.

With the federal government reporting 387,000 injuries and 3,331 deaths related to distracted driving during 2011 alone, I think we can all agree that something needs to be done. The question is, what? Is punishing the people not behind the wheel really the answer to the distracted driving crisis?

Photo Credit: Flickr (Creative Commons license).

The Backstory

The question didn’t begin as hypothetical. It began in September 2009, when then 18-year-old Kyle Best exchanged numerous text messages with his 17-year-old girlfriend, Shannon Colonna, while driving. Distracted by texting, Best crossed the center line in the road and hit a motorcycle head-on. The collision injured David and Linda Kubert, the married couple riding the motorcycle, who both ultimately lost their legs as a result of the accident.

Of course – and as they should – these two victims pursued legal action against Best. He broke the law, caused an accident, and left them with life-changing injuries. The Kuberts also named Colonna in the resulting lawsuit, based on the reasoning that she had distracted him and that this distraction is what led to the collision. Ultimately, the Kuberts resolved their claim against Best with an out-of-court settlement. Their claim against Colonna proved unsuccessful. During the course of the Kuberts’ appeal, judges determined the Colonna didn’t know Best was driving and so wasn’t responsible for the accident. However, the ruling established conditions under which such a claim would be permissible – and the implications of this decision could extend to drivers, and text message senders, across the state.


Among the many New Jersey residents who take issue with the ruling is Governor Chris Christie, who stated “You have the obligation to keep your eyes on the road, your hands on the wheel and pay attention to what you’re doing,” to a New Jersey radio station, CNN reported. Photo Credit: Bob JagendorfWikimedia Commons (Creative Commons license).

The Logic behind the Case Law

The Kuberts’ lawyer had reasoned that Colonna was “electronically in the car with the driver receiving the text and should be treated like someone sitting next to him willfully causing a distraction,” CNN reported.

As a personal injury lawyer, I obviously want to see car accident victims get the money they deserve. However, I believe this logic stretches the notion of negligence to an unreasonable point. Negligence is a term that roughly equates to recklessness or carelessness. It’s often expressed as a failure, such as the failure to obey traffic safety laws. In this case, the driver clearly failed to maintain his lane, reportedly because he was driving while distracted by a cell phone. He also failed to respect laws that prohibit texting while driving.

In what way is the sender of a text message negligent? Other than failing to account for the driver’s serious lapse in good judgment, I see little case for negligence here. No laws – as of yet, anyway – restrict an individual from sending a text message at any given time, and the recipient certainly has no obligation to view or answer the message immediately. When individuals choose to text and drive, they make a decision, however irresponsible, to take their eyes off the road and their hands off the wheel. Further, only in very unusual circumstances are real passengers in a car considered liable for accidents. Having a conversation with a driver is not illegal, and generally, it doesn’t require a driver to ever take his or her eyes off the road and hands off the wheel.

Setting a Questionable Precedent

Further, where does this path lead us, legally speaking? When state government agencies send out emergency warnings, like severe weather alerts and Amber Alerts, is the state then willing to share the liability for any accident that occurs because drivers are looking at their phones?

How do we interpret, and prove, the provision that states that liability exists “only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted”? If I text a family member because I know they are on their way home from work and will get home, and receive the text message, before I finish my commute, must I preface it with “Don’t read this while driving”? We can all encourage our friends to put the phone away while driving. We can ask them to take pledges and make them watch graphic public service announcements about what happens when people text and drive. We can spout off every imaginable statistic, but at the end of the day, someone who is alone in a car will make their own decisions about what to do.