Potential Civil Liability For Texting A Driver — “Remote Texters” Enter The Cross Hairs Of Negligence Law

In recent years there’s been a lot of talk of the dangers of texting while driving.  That’s always been focused on the person driving the vehicle.  But what about a person sending the driver texts?  Can that individual be liable for personal injuries or wrongful death if the driver crashes into another car or a motorcycle while reading the text?

This week a New Jersey appellate court answered “yes” to that question.   That’s believed to be the first time that an appeals court suggested that the sender of a text to someone driving a vehicle may be liable for negligence.   That decision may be overturned by New Jersey’s Supreme Court; regardless, it’s not binding on Iowa’s courts if the issue ever comes up here, but it’ll certainly create an interesting discussion if it does,

The New Jersey decision, if it survives further appeals, creates only a narrow window of possible “remote texter” liability.  Negligence liability may only be imposed if the individual sending the texts from another location knew they were being viewed by the recipient while driving.  The New Jersey court  determined 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.  The court also suggested that liability could imposed on a remote texter who “actively encouraged” a driver to read or respond to that person’s texts.   Another possibility for liability could be if the sender of the text has a  “special relationship” with the driver that allows the remote texter to control the driver’s conduct.

From a theoretical legal standpoint, this decision might make sense, but from a practical standpoint “remote texter” claims will be very difficult to prove.  The major problem is proving that the remote texter knew that the recipient driver would read or respond to the text while driving, as opposed to, say, after parking and turning off the vehicle.  Just because a text is sent doesn’t mean that it’ll be read the moment the recipient gets it.   The New Jersey recognized that rather easy escape route for remote texters when it stated that merely sending a text to someone known to be driving is not enough by itself to create liability against the text sender absent proof that the sender knew the recipient would read the text or somehow encouraged the recipient to read the text:   “Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.”

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