Third Party Texting Liability
By now, it should be common knowledge that if you text and drive and end
up in an accident, you will most likely be held to be at fault. Texting
and driving is extremely dangerous. Studies show that texting while driving
can be as dangerous or even more dangerous than drinking alcohol and driving.
As texting and driving becomes more of a problem, most states in the U.S.
now criminalize texting and driving. Whether your state criminalizes this
behavior or not, the Halperin Law Center encourages you not text and drive.
The life you save may be your own.
What is not common knowledge, however, is that even if you are not driving,
you could still be held responsible for causing an accident. How is that
possible, you wonder? If you send text messages to someone you know is
driving a car when you send the message, you know they will probably read
your text, and they end up causing an accident, you could be found negligent
and responsible for any and all injuries caused by the person you texted
- - even if you were miles and miles away in the safety of your own home.
This is sometimes referred to as “third-party texting liability.”
The law in this area is new, of course, and still developing. As of this
post, we are aware of only one appeals court that has taken on this issue.
The New Jersey Supreme Court has definitively held that there is such
a cause of action and someone may be held liable for such acts. Kubert
v. Best, 432 N.J. Super. 495, 503, 75 A.3d 1214, 1219 (App. Div. 2013)(holding
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
The idea of potentially being held responsible for a motor vehicle accident
when you were nowhere near a car, let alone driving one, may seem harsh,
illogical, or unfair, and that is understandable. At first blush, it does
seem unfair. As you examine the issue more deeply, however, you can see
where the New Jersey Supreme Court was coming from.
Whether or not a plaintiff (the person bringing the lawsuit) can sue a
defendant for negligence depends on the plaintiff proving or satisfying
all of the following four elements:
1.The defendant owed a “duty of care” to the plaintiff (a
duty of care has been defined as an obligation imposed by law requiring
one person to conform to a particular standard of conduct toward another person ;
2. The defendant breached or violated that duty of care;
3. The breach was a “proximate cause” (an event sufficiently
related to an actual injury that is held to be the cause of that injury)
of the plaintiff's injuries; and
4. The plaintiff suffered actual compensable injuries as a result.
In determining whether or not a defendant owed a duty of care to a plaintiff,
the courts look at the basic fairness of the alleged duty as it relates
to public policy. To do so, they must identify, weigh and balance multiple
factors, including the relationship of the plaintiff and defendant, the
nature of the risk caused by the behavior, the opportunity and ability
to exercise care, and the public interest in the proposed solution.
With respect to whether or not a duty of care exists, the courts have also
discussed the “foreseeability of the risk of the harm.” In
other words, would a reasonable person realize that their actions in texting
someone who they know is driving cause harm to others? It is foreseeable
that someone operating a motor vehicle but is distracted by a text message
might cause an accident, resulting in injury or death to others. It is
not, however, always foreseeable that everyone who receives a text message
while driving will be negligent and violate the law by reading the text.
It is not the sending of the text message alone that creates possible
liability for the non-driving defendant. Liability or lack thereof can
be determined by: sending the text while knowing the recipient is driving
and the sender’s knowledge that the recipient is likely to read
the text immediately that creates potential liability, because the sender
of the text has taken a foreseeable risk in sending the text message at
that time. Liability attaches because the sender knowingly participated
in behavior that is distracting for the driver.
Does it still seem unfair? Consider it this way – for many, many
years, a passenger in a vehicle who distracts the driver, resulting in
an accident, could be held liable for the injuries suffered by the victims.
With technology (particularly the use of cellular phones for both voice
and text communication) becoming such a large part of our lives, it makes
sense that the laws need to change to adapt to and address the risks to
the general public that technology can create if used while driving a
car or truck.
As our laws change with our technology, it is wise to pay attention to
any potential or actual changes, particularly as they relate to operating
a motor vehicle. Ignorance of a law or disagreement with a law are not
valid defenses for breaking the law. Check back with the Halperin Law
Center from time to time, or like our page on Facebook as we will post
about and discuss any such changes in the law as they occur.
We have significant experience in litigating texting while driving cases.If
you or someone you love has been hurt in an accident caused by texting
while driving, contact us at 804.220.0223 or email@example.com to
discuss your potential claims.