R U Driving?

By Kristine Jacobs

How much thought do you put into a text message before you send it? Do you consider where the recipient is and what he might be doing? A New Jersey court wants you to do just that.

Last month New Jersey became the first state in which the sender of a text message can be held liable for an accident that results when the recipient reads the text message. The New Jersey Appeals Court concluded 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.”

Many states now have laws governing cell phone usage while operating a motor vehicle. New Jersey’s law states that someone who is operating a motor vehicle on a public road or highway may only operate wireless telephones and electronic communication devices in hands-free mode. It also provides exceptions for emergency situations. Other states have variations on this law. Some of the differences among these laws include (1) the definition of hands-free (e.g., Washington state allows drivers to talk on a hand-held cell phone as long as the driver is not holding the phone to his ear); (2) the people to whom the law pertains (e.g., Mississippi only restricts specific drivers—those holding learner’s permits and intermediate licenses—from texting while driving); (3) the specific zones of enforcement (e.g. Arkansas bans drivers from using hand-held cell phones in school zones and highway construction zones); and (4) whether police may pull over a driver when the only violation they witnessed was a cell phone violation. (See http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html for a table summarizing relevant state laws.)

The New Jersey decision has raised eyebrows because it seeks to hold a non-present (or “electronically present,” as the plaintiffs characterized it) third party accountable for the negligent behavior of a driver. The court found three circumstances under which a third party who texts a driver could be held liable for a resulting accident. These circumstances are (1) if there is a special relationship (parent-child or employer-employee) that gives the third party control over the driver’s conduct; (2) if the sender actively encouraged the negligent act by taking affirmative steps and providing substantial assistance in violating the law; and (3) if the sender knew the recipient was driving and knew or had special reason to know (from past experience) that there was a likelihood that the driver would be distracted and drive negligently as a result.

If a third party text message sender can be found liable for the behavior of a negligent driver, do other actions put third parties at risk of liability, too? A natural extension of this holding would be to allow a caller to be held liable for an accident that results when the caller calls someone whom he knows to be driving and who will likely (based on past experience) take the call in a manner that violates the law. Further still would be the possibility that an email sender could be held liable for sending an email to someone whom he knows is driving if he also knows that the driver will be notified of the incoming email and will likely view the email in an unsafe manner.

When does such third party behavior rise to the level of liability? The court stopped short of providing any concrete examples. However, we do know that simply sending such text messages is not enough, even if the sender knew that the recipient was driving at the time. Unless the sender has specific knowledge of the recipient’s past practices regarding handling electronic devices while driving, the court allowed for a sender to presume that the recipient would hold off on reading such messages until it was safe to do so. As noted by Judge Marianne Espinosa in her concurrence, the majority set a high bar; she anticipates that courts will rarely impose liability on a third party. This high bar, combined with emerging tools that read text messages and emails out loud, will make proving third party liability more and more difficult. Other states may choose to follow this decision because it is based on accepted tort principles. However, given the publicity that this decision has received, it’s also possible that legislators will begin to step in to define the scope of third party liability in these types of situations