Liability for the person sending a text to a driver who causes a collision? This is not as far-fetched as you might think. In a society where we sanction lawsuits against bars who serve drunk patrons who later cause collisions by driving while intoxicated, many states do not even have laws making texting while driving illegal for the driver, let alone others who may bear responsibility.

However, the National Safety Council reports that cell phone use leads to 1.6 million crashes each year. This accounts for 330,000 injuries due to texting and driving. By way of comparison, in 2014, 290,000 people were injured in collisions involving drunk driving. However, the more disturbing statistic is that texting and driving is six times (6X) more likely to cause a collision than driving drunk.

texting-smartphone

As the statistics continue to roll in and the data continues to show the danger of texting while driving, some courts are suggesting, just as with bars who serve intoxicated patrons, that those who encourage a driver to text while driving should also be held responsible. In 2013, New Jersey Superior Court opined that, “when a texter knows or has reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to the public roads to refrain from sending the driver a text at that time.”  Relying upon that rationale, a Pennsylvania Court has very recently denied a motion to dismiss a texter from a personal injury lawsuit in a case where the driver was known by the texter to be driving and the two were texting back and forth for some time prior to the driver being in an at-fault collision causing fatalities.

While the theory is borne out of a desire to stop texting and driving, proponents and courts alike acknowledge that certain circumstances must exist before this cause of action could have merit. The previously mentioned cases both held that the texter must know or have reason to know that the recipient was driving at the time they sent a text. Additionally, the texter must know or have reason to know that the driver was likely to view the text message while driving. The New Jersey court likened this action to a passenger who intentionally creates a distraction in the car which causes a wreck.

Additionally, the New Jersey court stated that such cases would only have liability where the texter has a “special relationship” with the driver which leads to influence over the driver. These include employer-employee, parent-child, landlord-tenant and guardian-ward.

Finally, the Pennsylvania case rested in large part on the fact that the State of Pennsylvania had a statute making it illegal to text message or view text messages while driving. Therefore, the attempt to text a driver who the texter knew to be driving, and likely to view the text, would be similar to aiding in a criminal enterprise.

The implication of these cases to Texas cases is unknown but there is definitely precedent for expanding our laws to include texter liability in certain circumstances. One thing is clear, as the injuries and deaths mount from collisions involving texting, we are likely to see more intervention from the legislature and the courts to make our roadways safe. Our law firm will continue to look at all avenues of recovery to make sure our client’s rights are protected.

by Chris Carver | October 14th, 2016