Text a Driver Causing a Crash and You’ll Pay for It
A New Jersey appeals court has held that sending a text message to someone you know is driving could result in liability for you, if the driver causes an accident while reading it.
The case involved a teenager, Shannon Colonna, who texted her boyfriend Kyle Best while he was driving on a highway in New Jersey in 2009. Best crashed into a couple on a motorcycle, seriously injuring them. (They each lost a leg in the accident.) They settled with Best and continued going after Colonna.
A state court dismissed their claims, ruling that Colonna, as the sender of a text message, didn’t owe the plaintiffs a duty to be careful – one of the elements of a negligence claim – and they appealed.
The Appellate Division of the Superior Court of New Jersey on Aug. 27 held 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.”
New Standard of Care
The new standard for negligence cases in New Jersey, as of now, is that if a texter knows or has special reason to know that the recipient is driving and likely to read the message, the texter has a duty to public road travelers to not text the driver.
In Colonna’s case, the plaintiffs were unable to prove she knew that her boyfriend was driving and would read her messages, so although the case breaks new legal ground, she was not held liable.
“The teen won on a motion for summary judgment, meaning that she established that the evidence possessed by the plaintiffs, even viewed in the light most favorable to the plaintiffs, was insufficient to hold her liable under the applicable legal standard,” explains Jeff Hermes, director of the Digital Media Law Project & Online Media Legal Network at Harvard’s Berkman Center for Internet & Society.
Hermes indicates the opinion is on solid legal ground. “The risks of texting and driving are well known,” he says. The ruling strikes a “reasoned balance” between holding both the driver and the texter responsible for what happens when they try to communicate in a dangerous situation.
“The court’s decision echoes rulings in other contexts which state that one can be responsible for knowingly encouraging dangerous behavior even if it is ultimately another’s choice as to whether to engage in that behavior,” Hermes notes.
Appeal Still Possible
In this case, the teen texter is off the hook unless the plaintiffs appeal to the New Jersey Supreme Court and win there, Hermes says. The state high court could find that the new standard is incorrect, he says.
“For example, the New Jersey Supreme Court might decide that texting without knowing whether the recipient is driving is inherently risky, and that you can be held liable if you don’t affirmatively check that the recipient isn’t driving first,” Hermes imagines.
If that happens, the case will go back to trial.
For now, at least in New Jersey, it’s best to text with caution. “If there is the slightest hint that the recipient of your texts is driving, stop texting them,” Hermes suggests.
There are still many unsettled questions that the opinion raises.
“It is unclear from this decision whether a court would hold you responsible for sending a final text saying ‘STOP TEXTING, YOU’RE DRIVING’ that itself causes a distraction,” he notes. “Such a message might be acceptable if the driver continues to text you after you’ve stopped responding or it is clear they will continue to text you unless you tell them to stop, but this is an unsettled question.”