By car injury attorney, Michael P. Ehline here – Over the last several days, our offices have been inundated with callers seeking information about texting and driving. I turned on the news, only to see the pundits espousing in a dramatic fashion, that even the person sending a text could now be liable for personal injury negligence, if the person receiving the message, was operating a motor vehicle. The new “crime”, appears to be based upon the fact that opening text messaging during the past few years, has proven to be extremely dangerous for drivers, and the distracted driver involved in crashes, causes an injury to others and themselves. And honestly, it does appear that the courts are beginning to make decisions that could affect the person who decides to text a person they know is driving, making them liable for injuries, death and damages in civil court. But is this really what courts are saying?
Here is a Sensational News Story Video Claiming that Texting Could be a “Crime”
I wanted to do some thoughtful research, and let you know the true state of affairs, since the press has only thus far served up confusion, and alarmist snippets of what “could be.” First, this was one court and it was an appellate court back east, in Jersey. So it was not the U.S. Supreme Court, and even if it was law positive in that state, it would not be binding in other jurisdictions as positive law. So this means, even if it was a law in Jersey [sending a text to a driver is a crime, or infraction, etc.), unless the Jersey state or federal high courts made a declarative ruling, it would be mere persuasive, and not mandatory authority. Second, the court only said this in its dicta. What is Dicta?
Dictum is a statement, comment, or observation in a judicial opinion that is unnecessary to the decision in the case. Unlike the holding (final determination) in a case, dictum is not binding on other courts deciding similar issues. However, sometimes dictum is so widely recognized by other courts that it is adopted into an opinion as though it were binding authority on a matter, and in such a case it is referred to as “considered dictum”. Although dictum may be cited in legal argument, it does not have the binding force of a precedent (previous court decisions or interpretations) since the remark was not part of the legal basis for the decision. (See source.)
In the case at bar, as will be shown, the appellate court merely said that if a person sending a text knew or should have known the person receiving the text was operating a motor vehicle, and the person receiving would also be opening the message, then the sender is guilty, or in this case civilly “liable”. So you are probably asking your self, that is dumb, “how could a person sending a text know that someone was going to open their text while driving?” That was our initial reaction, but after a round table with a midwest catastrophic injury attorney, Jon Rosenfeld, a California lawyer injury Steven Sweat, accident lawyer David Slepkow from Rhode Island, Florida injury attorney Matt Dolman, and even prominent and respected trial lawyer, William Bill Hurst, and Florida lawyer, Matt Dolman, it became clear to me that and our firm, that there are actually several ways a person sending a text could potentially know the receiving vehicle operator would open a text. Here is a partial list.
List Of Reasons a Person Might Know Someone Will Open, Read, or Text Back While Driving
- Employer/Employee Relations: Keep in mind, some states do not even regulate hands free texting, such as voice, or hands free talk/chat. But, assuming arguendo, a person is delivering a product or service, and his boss says “I will be texting you the correct address, once you are en route”, or “text me back once you are on the freeway”, this could create a reasonable inference that an employer knew or should have know that the vehicle operator who caused the wreck, would be distracted. Getting this so far?
- Parent/Adolescent Relations: This is an easy one. “Johnny I expect you to text me when you are on your way home, or if you get lost, or stuck in traffic.” One can see that a jury would still have to presume a person would not pull over, unless there was direct evidence, custom or habit of conversing via texts, while in transit.
- Best Friends Forever: Similar to the case at bar discussed below, if there are two parties, like best pals, or a boyfriend and girlfriend, and they have a custom or habit known by others, to text eachother back and forth while driving, and that cause a motorcycle accident, for example, this could be enough to trigger negligence liability.
In all cases, none of the above facts would be outside an ordinary negligence claim. In fact, this really is part of the existing doctrine of “actual or constructive notice” in a tort claim, like a slip and fall case. (Did the store owner know or have reason to know that there was slippery liquid on the store aisle where the lady fell and broke her arm?) As most of our audience knows, negligence occurs when a person fails to act in a reasonable manner under their social contract to behave in a way that does not cause unnecessary injury or death to those in the “zone of danger.” So one thing we all agreed upon as lawyers, is that this is really injury law 101, and that the Jersey judge’s dicta, is really already what law school professors have been teaching for decaids. Failing to act reasonably for the circumstances can lead to a tort claim against the wrongdoer.
Text Message Senders May Be Held Liable in Crashes According to N.J. Court’s Opinion
Enter the Jersey Court case. A New Jersey appellate court justice has opined that anyone sending text messages to drivers, if the driver is involved in an accident, the sender of the text may be held liable in civil cases. So no, this was not about a criminal act at all. So let’s dispel that notion straightaway. The appellate court ruled that if the text message was the cause of the accident, then the person sending the text message could liable, just last Tuesday. The N.J. appellate court ruling Tuesday was a part of a case, in which a couple was severely injured on a motorcycle that was struck by a vehicle. The vehicle was driven by a teenager who was texting while driving in 2009 in Morris County. The teenage driver brought a lawsuit against his girlfriend, who had sent him the text messages. A lower court had dismissed the lawsuit, and the judges of the appellate court upheld the ruling. The court said the person texting a motorist is not liable, for negligent actions of the driver, but the individual texting does have a responsibility not to text the person, if they know they are driving and may read the text. According to Seton Hall University associate professor of law, Jenny Carroll, this appellate court ruling is a warning. This warns people who send text messages to others who are driving are putting themselves at risk to be held liable. Carroll stated that she believes the court was sending a message to teens and their parents that liability can exist, if this continues. The professor said that it is possible we could see cases where if an individual text messages someone while they are driving and they are involved in an accident, the person who sent the text message could be held liable too. Carroll said that drivers should tell the person texting that they are driving and end the communication.
She also said that enforcing this type of law could be difficult. According to the plaintiff’s attorney Stephen Weinstein, this ruling does send a message, and it is do not text someone you know is driving. The lawyer said if it saves one life or one hundred, the merit of the case has been valuable. But really? The lawyer had their case dismissed. So the only traction the case seems to have had, was a sensationalist message. As we discussed above, the law has long been the case that if a person knew or should have known of a danger, then liability could arise. Â But clearly, it is the job of the plaintiff’s attorney to conduct discovery, and get evidence that these particular parties were engaging in texting and driving back and forth messaging. A lower court, absent facts, or objections to controverting facts, can and will often summarily adjudicate a case and dismiss it. Then it can go up on appeal. And here, the appellate judges said there was no liability, since there was zero proof that defendant Colonna knew that defendant Best was driving when Colona texted him.Â Here, even though it went up, the plaintiff still lost, and was left with a restatement of the law by the courts. So in my humble opinion, this is a much to do about nothing. Judge Victor Ashrafi wrote for the majority with one judge dissenting, 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. … [A] passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same. (Read the actual court decision here in PDF.)
The one take away for me, is that a plaintiff’s lawyer should have alternative theories of liability, and two, that a lawyer making an argument like this had better have some excellent and verified evidence that there was a pattern and practice of the defendants to text eachother and drive. Now, assuming the Jersey plaintiff has the evidence, the case can be appealed to the highest court of the state and eventually end up in the U.S. Supreme Court. So we will wait to see what happens next, and keep you all informed about civil liability for texting and driving.