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Takes Two to Text: Message Senders Could Be Liable for Distracting Drivers

By Erika Morphy
Aug 30, 2013 11:26 AM PT

A three-judge panel from the Superior Court of New Jersey's appellate division has pushed the envelope a little further in defining who is liable for accidents caused by texting.

Takes Two to Text: Message Senders Could Be Liable for Distracting Drivers

Namely, the panel has established a new standard of responsibility and ruled that texters whose communications distract a driver and lead to an accident may be held responsible in civil court.

"We hold 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 ruling said.

As the language notes, there is a significant caveat to this, as the texter has to have good reason to believe that the driver would actually respond to the text.

Many Unanswered Questions

This was not a unanimous decision, as a third judge dissented. Also, in the case from which this decision stemmed, the texter was held not liable for distracting the driver due to insufficient evidence.

Still, the standard of responsibility established is eyebrow-raising for a number of reasons. For one, it codifies into law the responsibilities and liabilities a person's electronic presence and actions have. Two, it turns on its ear all legislation to date regarding texting.

"This measure is extending the concept of liability pretty far," Peter Toren, partner with Weisbrod Matteis & Copley, told TechNewsWorld. "Laws in this area so far have placed the responsibility and liability solely on the driver for texting while driving, not the texter."

There are many unanswered questions about how a court would go about deciding whether an incident met the ruling's criteria, particularly regarding the texter's knowledge of the driver's response, he said.

"How can anyone prove that a texter 'knew' someone was driving and that that driver would take his eyes off the road to look at the text and then respond?" Toren pointed out.

A Real World Case

Indeed, even the original incident from which this standard emerged was shrouded enough that no decision could be made as to the texter's liability.

The plaintiffs in the case, Linda and David Kubert, were grievously injured -- they both lost their left legs -- when an 18-year-old driver who was texting while driving crossed the center line of the road.

The plaintiffs have already settled their case with the driver, but they also sued the texter -- the driver's 17-year-old friend. A summary judgment dismissed the suit, however, and the appeals court agreed that was the right move: The plaintiffs did not show sufficient evidence to defeat summary judgment in favor of the remote texter, the ruling decreed.


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