A driver distracted by sending and receiving text messages can – and should – be held liable if they cause a crash that results in injuries to others. But what about the people on the other end of those messages?
There is a legal theory being tested in some courts that asserts people have a duty to avoid knowingly engaging in text messaging with someone they know or should know is driving. One of the very first cases on civil liability of remote third-party texters – and one that is being cited in other cases – is that of Kubert v. Best. In this case, the New Jersey Supreme Court made a bold ruling in an attempt to combat the harms caused by texting and driving. The court articulated a duty to refrain from sending text messages to someone who is driving if the texter knows – or has special reason to know – that the recipient is going to view the message while operating a motor vehicle.
Now comes the case of Gallatin v. Gargiulo, before a court of common pleas in Pennsylvania. According to court records, decedent was a volunteer firefighter killed in a motorcycle accident by an allegedly distracted driver. His family, plaintiffs, allege the at-fault driver was distracted by a text message sent by one of her employees.
In the lawsuit, the family seeks damages not only from defendant driver, but also from the employee who sent the text, arguing the worker knew or should have known his boss was driving at the time he engaged her in a text message communication, and therefore contributed to her negligence. The lawsuit also names driver’s landscaping company, as she was in a company-owned pickup truck and was reportedly running an errand for work at the time. Both of these latter claims stem from a legal theory known as vicarious liability.
Will the third-party liability claim prevail? It’s tough to say. Many legal scholars are skeptical, and the precedent set in New Jersey is by no means the norm. Defense lawyers are going to argue their clients have/ had no way of knowing the recipient was on-the-road at the time of the collision. Questions may also be raised about whether the recipient actually opened and was reading the message at the time of the collision. And even if a messenger sends a communication knowing someone is driving, they may expect the driver will wait until at a safe location to read it.
Still, the concept of third-party liability isn’t totally foreign in civil courts – particularly in New Jersey, which has a history of setting legal trends. Courts in that state decided in 1959 that a tavern owner could be liable for drunk driving injuries suffered by an underage drunk driver who the tavern owner served alcohol. The courts later expanded that liability to social hosts – under limited circumstances. These are known as “dram shop laws.”
Florida is historically more conservative when it comes to these kinds of legal theories, but that doesn’t mean it would be impossible to prevail.
If you are injured in a distracted driving car accident in Miami, it’s important to explore all possible avenues of liability.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
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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