Often overlooked in the conversation about distracted driving is the fact that it takes two to talk or text. At the scene of every accident caused by a driver on a cell phone, there's an invisible presence on the other end of the line. Well, that forgotten party might not stay out of the sight much longer.
This week, a New Jersey court ruled that someone who "knowingly" distracts a driver via text can be held responsible if the message leads to a crash [PDF]:
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 opinion goes back to a tragic accident from 2009 that occurred in Mine Hill Township, New Jersey. A teenager named Kyle Best, driving a pick-up truck, veered across the double center line shortly after sending a text message, and struck a motorcycle carrying Linda and David Kubert. The Kuberts each lost a leg in the crash, and the unfortunate incident gave rise, in part, to a new measure that helps prosecutors bring cases against drivers who violate the state's hands-free law.
The Kuberts settled with Best, but they also filed suit against the person he'd been texting, Shannon Colonna. According to court records, Best and Colonna texted back and forth 62 times on the day of the accident. The phone sequence suggests with little doubt that Best was distracted by the exchange: Colonna texted Best about a minute before the accident, Best texted back just moments before it happened, and Best called the police 17 seconds later.
A lower court dismissed the initial claims against Colonna on the grounds that she had no legal duty to avoid texting someone — regardless of whether or not that person was driving — but the Kuberts appealed on the grounds that Colonna was "electronically present" in the car and therefore aided and abetted the accident.
Which brings us back to this week's ruling, handed down by the appellate division of the New Jersey Superior Court. The court ruled in Colonna's favor. (Colonna said she didn't know Best was driving, and the content of the texts weren't available to dispute that position.) In doing so, however, two of the three appellate judges disagreed with the lower court's reasoning and argued that someone sending a text message does, in fact, have a legal responsibility not to distract a driver:
We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.
To be clear, the ruling does not let drivers off the hook, nor does it prevent someone from sending a text out of fear the recipient might be driving. The court opinion states that a person should not be liable for transmitting an electronic message simply because another person might become distracted by that message. (By logical extension, if a driver read a tweet just before an accident, the injured party shouldn't be able to sue the handler of that Twitter account.) At the end of the day, drivers still bear full blame for their behavior behind the wheel.
But two of the appellate judges argued that the situation changes slightly if someone sending a text "had special reason to know" that the recipient was not only driving but would read the text immediately and be distracted as a result. In that case, the conduct could be considered "unreasonably risky" — the texting equivalent of covering a driver's eyes — and the person sending the message might also become liable for civil damages. This passage from the main opinion sums up the court's belief best:
The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.
To put the new precedent into a single sentence: don't text someone you know is driving, especially if you think that person will read the message right away. Whether or not the ruling holds up in other courts, that seems like good advice to live by.