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Can You Be Held Liable for Texting a Driver?

Currently, 10 states have laws that ban the use of handheld cell phones while driving, 36 states ban the use of cell phones by novice drivers, and 39 states have bans on text messaging while driving. California has all three of these types of law in place. The problem of distracted driving is nation-wide. If you've watched TV in the few years or so, you've probably seen some of the commercials about texting while driving and how "it can wait." (http://www.youtube.com/watch?v=92kPKbXHqss; http://www.youtube.com/watch?v=GP4tW-t6vjw); https://www.youtube.com/watch?v=id0CZ6VoI3A. What happens if you are home, sitting on your couch, and you decide to text someone you know to be driving, thereby causing the driver's distraction? If the driver picks the phone up and reads and answers the message, he or she breaks the law and will be open to civil liability. But, are you liable for sending the text message that distracted the driver? An appellate court in New Jersey has just ruled that yes, you can be liable. Its ruling stated that, "We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving," explains the court in a recent opinion. (PDF). David and Linda Kubert were on their motorcycle when Kyle Best crashed his pick-up into them. Best had been responding to a text message and looked away from the road. Both Kuberts had partial leg amputations following the car accident. The Kuberts sued Best and then also sued Shannon Colonna, the 17 year old who sent Best the text message, for aiding and abetting Best. The suit against Best settled for the limits of his insurance policy, $500,000. The district court dismissed the charges against Colonna, and this appeal followed. From oral argument, it appeared as though the judicial panel was concerned with texters who are aware of the driving schedule of the textee. There is no way to discourage a driver from reading a text message you send them while driving unless you don't send it at all, a point which was made by Judge Michael A. Guadagno during the oral arguments. In the end, the court decided that the Plaintiffs had not provided enough evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident. The court held that there was no evidence that Colonna "actively encouraged" Best to text her while he was driving. Also, "Colonna did not have a special relationship with Best by which she could control his conduct" according to the appellate court. The "but for" test is commonly used in the law. "But for the defendant's conduct, the plaintiff would not have been harmed" is the form it usually takes. Even when considering the driver sending a response text message while driving, but for the original text message from the non-driving sender, the driver would not have been responding and would not have been distracted. Of course, application of this rule may be difficult, which is something the New Jersey panel must have considered. In this case, for example, the text messages weren't preserved, so no one other than the Best and Colonna really know what happened. Until our cars and phones are smart enough to work together to prevent texting/reading while driving, these questions will remain.

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