Sending a text to a driver makes you liable?
A New Jersey court made headlines in August when it held that the sender of a text message could potentially be liable if an accident is caused by the text, 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 case, Kubert v. Best, involved an 18-year-old driver who crossed the center lane while texting and hit a married couple on their motorcycle. Both the wife and the husband lost their left legs in the accident.
Phone records showed that the driver had responded to a text just seconds before he called 911 to report the accident. The couple sued not only the driver but also his 17-year-old friend who sent him the text. The court dismissed the case against the 17-year-old, citing that there was no evidence that she knew her friend was driving or that he would respond to her texts while he drove.
However-and this is what made headlines-the court held that, in future cases, there could be a claim if "the sender knows that the recipient is both driving and will read the text immediately."
Keep in mind that the New Jersey claim was whether the sender of the text could be held civilly (not criminally) liable.
So what does this ruling mean for residents of the Bi-State area?
In the short term it doesn't mean anything. The court was applying New Jersey law to a New Jersey case. New Jersey has been one of the most aggressive states in cracking down on texting and driving, treating it as akin to driving while intoxicated.
Could this wind up in the courts of either Missouri or Illinois?
Possibly but the plaintiff would have to clear a very high bar to persuade a court that a person who was not even in the car is still liable for the car accident. A plaintiff would have to show that the sender of the text not only knew that the recipient was driving but also that they would likely respond (and get distracted) while they drove.
Wait, how am I supposed to know if somebody is driving?
Most of us have no idea of we are texting somebody who is also driving but there are certainly situations where we do know. A parent could know that their child just left with the car. Or an employer could know that an employee is on the road for work.
Knowing that they are behind the wheel still isn't enough, though. A plaintiff would have to show that the sender knew that the driver would respond to their texts while driving.
How can I avoid being held at fault?
Do we sound like a broken record yet? Don't text and drive. Keep your phone off or in airplane mode while you are in the car. And if you want to send a text to somebody that you know is driving, don't send it. It can wait until they arrive at their destination.
As always for legal advice you can contact the experts at Brown and Crouppen by calling 314-222-2222 or online at www.brownandcrouppen.com.