Distracted driving is a serious problem nationally, and many states – including North Carolina and South Carolina – have sought to curb this dangerous activity by enacting laws that prohibit drivers from texting behind the wheel. We all know a motorist engaged in technology is less aware of the road. But does that mean we have a duty to make sure the person with whom we’re communicating via smartphone is not driving?
That’s the novel legal theory that is making its way through several court systems. The notion is that the sender of a text message who knowingly corresponds with a driver is no less responsible than the driver. It’s being tested now in several cases – one in New Jersey and another in Pennsylvania.
In Pennsylvania, the case of Gallatin v. Gargiulo, stemming from a tragic distracted driving crash, prompted lawmakers in that state to enact tougher distracted driving penalties. In May 2013, a 68-year-old volunteer firefighter was killed in a motorcycle accident while riding about an hour north of Pittsburgh. In a wrongful death lawsuit filed by his estate, his family alleges the driver who struck him was distracted by text messaging. But the plaintiffs are not just suing the driver. They are also suing the man who was texting with her. The judge has agreed to allow the legal theory to move forward.
The motorcyclist had just left his daughter’s home and was slowing to make a turn when a sport utility vehicle struck him from behind. The 46-year-old driver of that SUV was reportedly distracted by a text message. Police obtained a warrant for her cell phone records and discovered there had been an open text on her phone at the time of the fatal collision.
The decedent’s family is suing the defendant and her husband, their business (because the company owned the vehicle she was driving), and an employee at the business, with whom the driver was allegedly texting. In the complaint, the family asserts the worker knew or should have known his boss was operating a motor vehicle when he texted her, and thus he is just as responsible for the crash.
Whether that theory will gain traction is questionable. Legal scholars weighing in with The Washington Post say it’s “a stretch.” An attorney for the defendant employee said his client had no way of knowing his boss was driving when he sent her a text message, and it isn’t clear the driver viewed the text while she was driving.
Still, the theory was upheld by the Superior Court of New Jersey in 2013 in the case of Kubert v. Best. In that case, a married couple was riding a motorcycle when a texting teen sideswiped their bike with his pickup truck, causing them to suffer serious injuries. Cell phone records showed he’d been texting with his teen friend at the time of the crash. The plaintiffs settled their lawsuit with the driver, but they also pursued damages against the teen’s friend, with whom he’d been texting.
The girl admitted she’d been texting with her friend throughout the day, as they always did. The trial court found no legal basis on which to hold her liable. However, the New Jersey appeals court panel disagreed. Although the court found the plaintiffs lacked evidence to prove the defendant knew her friend was operating a vehicle when she texted him, the court did make it clear that people owe a duty of care to refrain from texting someone who is known to be driving. A failure to do so, the court ruled, could result in liability if they knew or had reason to know the recipient was driving.
To our knowledge, this theory hasn’t yet been tested in North Carolina, but our car accident lawyers will be watching closely the legal developments on this front.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Before you hit send on that text, you might want to make sure the person you’re sending it to isn’t driving, Nov. 10, 2016, By Fredrick Kunkle, The Washington Post
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