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But, I Wasn’t Driving When I Sent Those Texts! How Could An Accident Be My Fault?

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 be distracted).

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 804-409-3632 or info@halperinlegal.com to discuss your potential claims.