Tuesday, September 3, 2013, by Kerry Boehm
The act of texting while driving has long been a hot topic of debate, beginning with texting’s initial growth in popularity in the early and mid-2000s. Because texting while driving exists as a provable distraction, many states, North Carolina included, have banned it via statute. The topic is virtually unavoidable now, as cell phone carriers have launched massive television, Internet, and radio advertising campaigns warning people not to text and drive.
The danger of drivers engaging in texting while on the road is recognized as a potential harm to the public. In the criminal realm of law, courts across the country have imposed strict consequences and criminal liability for individuals who hurt or kill others while texting and driving. Additionally, courts have imposed civil liability on drivers that harm others or cause an accident while texting and driving.
Last week, New Jersey’s Appellate Division for the Superior Court became the first court to expand such civil liability to individuals who text a person while knowing that the other person is driving in that moment and will likely read the text while the recipient is driving. That is, the court found that individuals not even in the automobile at the time may be civilly liable. The knowledge – knowing that sending a text could conceivably distract a driver on the other end – creates a duty. In short, the court ruled that being the “sender” that transmits a text to a “driver,” while knowing that the other person is driving, opens up civil liability possibilities.
In its August 27 ruling, the court summarized its opinion in stating that “When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.” The court engaged in a thorough tort analysis of the facts, including foreseeability and indicators of a special relationship. It concluded that the risk to the public created in knowingly texting a driver is foreseeable.
In short, the court ruled that being the “sender” that transmits a text to a “driver,” while knowing that the other person is driving, opens up civil liability possibilities.
This new development could have far-reaching effects. In looking to future lawsuits, a similar rationale may apply in other states, and other courts may too expand civil liability to those that text while knowing the recipient on the other end is driving. Ultimately, while this court announced a new possibility of civil liability, it did not actually impose such liability upon the text sender in the case. The primary issue in the case was whether the driver’s friend, who was texting him at the time of his vehicular death, could be found liable for partially causing his death. The court found that while civil liability was possible, it should not be imposed in this case.
At the same time, the New Jersey court’s result provides for an interesting debate as to where liability ends or should end. Is it the responsibility of the driver himself not to engage in texting? Should the driver be responsible for not reading texts while on the road? How can individuals solidly know when the other party is actually driving? The court here tried to answer a very twenty-first century question, and tort law may expand to follow suit.