Texting and Driving — Who’s Responsible after a Motor Vehicle Accident?
Despite public awareness and public service campaigns, the instances of people driving and simultaneously sending or reading text messages has increased. A majority of states have enacted laws banning certain types of cell phone/device use while driving, specifically sending and receiving text messages. And more and more, courts are finding that drivers who caused accidents because they were distracted by sending or receiving text messages will be liable for any damages or injuries caused. But what about the person who sent the text message? Can they be considered liable? The most likely answer? It depends.
Those states that have criminalized texting and driving have not included statutory language that makes it illegal to send a text message to a person who is driving, even if you know the person is behind the wheel of a car. In a New Jersey case that could set a precedent for other jurisdictions, though, the court held that a non-driver who sent a text message to a driver could be liable if the driver was distracted by the text message and caused an accident.
In Kubert v. Best, a teenager driving a truck veered into the path of a motorcyclist, hitting the bike head-on. Evidence indicated that the teenager had sent a text message just seconds before the collision. The injured motorcycle riders sought damages from the driver, but also named as a defendant the teenager’s female friend, who had been sending him text messages at the time of the accident.
The court concluded that “the sender of a text message can potentially be liable” for an accident caused by texting, but only if the sender knew or had reason to know that the person to whom the message was sent was driving, and would view the message while driving. The court considered the sender of a text message as essentially similar to a motor vehicle passenger who encourages reckless or careless driving.
The court was clear, though, that the sender did not have liability simply because he or she knew that the recipient was driving when the message was sent. To be liable, the sender must have “actively encouraged” the driver to read the message while driving. To meet this standard, there must be evidence that the driver communicated that he or she was driving.
The court ultimately ruled that the sender did not have actual knowledge that the recipient of the text message was driving when it was sent.
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