Can You Be Sued for Texting a Driver Who Causes an Accident?

Text message on phone screen


Do you always know what the recipients of your text messages are doing when you text them? An appellate court in New Jersey is considering whether text senders can be held liable when a driver reads a message and gets into an accident with a third party.


Duty Debate

In Shannon Colonna’s case, the riders of a motorcycle reportedly sued both her and Kyle Best after Best crashed his pickup into them in Mine Hill, N.J., in September 2009. Colonna and Best, who were dating, had been texting each other just before the accident.

After settling with Best, David and Linda Kubert – each of whom lost a leg in the accident – tried to argue that Colonna is responsible. A New Jersey trial court dismissed their claim, and they appealed.

The trial court had dismissed the Kuberts’ claim based on its conclusion that Colonna didn’t owe them a “duty of care” – one of the four elements of negligence. (The other elements are breach of that duty that causes an injury or damage.) How can a person owe a duty to refrain from doing something dangerous that could hurt people she’s nowhere near or even aware of?


Open Door Policy

Interestingly, the appellate judges on May 6 reportedly indicated that they were at least considering the idea that a remote texter could owe other drivers on the road a duty to not text someone she knew was driving.

“My client doesn’t know he’s driving, she doesn’t know his schedule. She cannot control when Kyle Best reads the message,” Colonna’s lawyer told the three-judge panel. “Other than not to send it to begin with if she knows he’s driving,” shot back one judge.

Attorney Tyson Snow headshot

Tyson Snow

Tyson Snow, a Salt Lake City lawyer with Pia Anderson Dorius Reynard & Moss who specializes in social media and technology law, says the judges may want to leave the door open for lawyers to develop the state’s tort law. “Negligence issues can and should be explored beyond what our traditional mindset is,” Snow points out.

He reminds readers that for many years, few cases were brought against people talking on their cell phones while driving. Now there’s an obvious duty to not talk on your phone – it has been proven dangerous, and many states now outlaw it.

“We’ve established that reading texts while driving can be the grounds for a negligence suit, so it’s possible that court was leaving door open for lawyers to argue about other activities and duties owed to third parties,” Snow says 


Causation Problem

That being said, Snow doesn’t think the Kuberts will prevail against Colonna in this case. Even if the appeals court agrees with them that she may have owed a duty to not text someone she knew was driving and reading her messages, the element of causation just isn’t there.

“For causation to work, there has to be some kind of action that caused the end result, and in this instance, sending a text to someone is not the cause of the accident,” he says. Best’s reading of it while he was driving is what caused the accident. He could have read it later – texts don’t disappear if you don’t read them, Snow points out.

The appeals court could agree that the case should have been dismissed – just on different grounds than the trial court decided. “Even if Colonna lost on duty, I’m 99.9 percent sure she would win on causation,” Snow says.


New Duties on the Horizon? 

Even if the case doesn’t make any new law in New Jersey, it shows that judges are willing to adapt to new technologies, and social media seems to always be pushing the boundaries of the law that relates to those technologies.

It comes down to knowledge, Snow agrees. To whom do you owe a duty because of knowledge you have about the potential actions of a person you’re dealing with? “There will continue to be cases that will explore this idea,” he predicts. 

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