While I have written numerous times about the dangers and laws surrounding using a cell phone while driving (see related links inset), there has been far less discussion about knowingly sending texts to an individual behind the wheel and the potential for liability against the sender.

Think it sounds far fetched? Think again. Or at least according to courts in New Jersey and Pennsylvania where courts have upheld text sender liability as a valid cause of action against someone for third party liability due to texting someone you know is behind the wheel.

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In 2013, a New Jersey appeals court held that a text sender could be found liable to third parties for injuries caused when the distracted driver has an accident. Nevertheless, the determination of knowledge is a steep hill to climb, as that appellate court was not convinced there was enough evidence to establish knowledge of the sender that her friend was driving at the actual time of the sent message (while the distracted driving was, in fact, the cause of the driver losing control and severely injuring two motorcyclists). The third party’s text message came less than 30 seconds before the accident occurred.

text sender liability

Have you thought about the risks of knowingly sending a text to a driver?

A similar test of third-party liability came recently in Pennsylvania. This time the court again acknowledged the valid cause of action against such “remote texters” and concluded that two individuals who sent texts to the driver could be named as defendants in a civil liability case. Yet again, the degree of difficult for the plaintiff of the liability suit remains high as the element of knowledge on the part of the sender must be proven.

To dive deeper into the analysis, Section 876 of the Restatement (Second) of Torts (an influential treatise on general principles of common law United States tort law) does extend such liability:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he(a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

So, what do you think? Ever hold off on texting someone because you know (s)he is behind the wheel? Will you now?


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