This is the second of two posts on whether liability can attach to a person that knowingly sends texts to a driver, on the theory of contributing to the driver’s distraction. Part one was by Ray Mollica.
Mark Bower now responds:
————————–By Mark Bower
Notwithstanding Mr. Mollica believing that he is right, or even knowing that he is right, I think he is wrong. However, a NJ trial-level court has agreed with him. The case was dismissed, and it seems unlikely that an appellate court will reverse that. Which demonstrates that although I am overruled, I am still right, and they are still wrong.
I note in passing the confounding misfortune that the plaintiff’s attorney goes by the nickname “Skippy.” Cute (or cutesy) names, or nicknames, that may be endearing in person, have a way of diminishing the seriousness of a case. That may have happened here.
The dismissal of this case, and Mr. Mollica’s confidence in his rightness, stem from the simple premise that the person sending a text message to someone driving a vehicle, owes no duty of reasonable care to anyone. That premise is presented as a self-evident axiom. Absent a duty, and the breach of that duty, there can no liability. Basic law school reasoning. But I don’t accept the “no duty” premise to be so self-evident.
That “there is no duty recognized anywhere for a person sending a text,” is likely factually correct (for now), but only because the sending of text messages is a new form of communication, and the law simply hasn’t caught up with the technology yet. The law evolves slowly, deliberately, and gradually, while technology progresses a lightning speed. So there is a lag time between them. The NJ case is an attempt to bridge that gap, and the judge deciding it wasn’t ready to make the leap. Eventually, some other judge will. It’s just a question of when.
The use of cell phones is now near-universal. Many homes have eliminated land lines, and depend on cellular service entirely. That process has taken around 20 years.
It has taken those 20 years for the state legislatures to catch up with the dangers of “distracted driving.” Eight states that have banned the use of handheld cell phones while driving: California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon and Washington. Police officers in seven states can pull over a driver if the driver is using a cell phone, even when no other driving offense has taken place. Cell phone use for bus drivers has been outlawed in Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas and Virginia, All states except Alaska, Arizona, Florida, Hawaii, Idaho, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Wisconsin and Wyoming have banned all cell phone use by teenage drivers. (Teenagers are more likely both to be involved in fatal car crashes and to talk on cell phones while driving.)
Teens are also the most frequent texters. Teenagers and drivers in their twenties and thirties are the most likely to text while driving.Texting is an even greater distraction than talking on a phone while driving. A majority of states have banned all texting while driving. The only states that have not are Alabama, Arizona, Florida, Hawaii, Idaho, Indiana, Maine, Mississippi, Missouri, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas and West Virginia.
These evolving motor vehicle rules show that the law is gradually catching up to the technology and dangers of distracted driving. The next step is to catch up not just with the distracted driver, but with the person knowingly distracting the driver. (Actual knowledge – what the law calls “scienter” – is the key here.) The NJ case, although unsuccessful, presented a good (but not perfect) fact pattern for a test case. Cell records showed that the driver and his texting girlfriend had exchanged 62 TM’s that day before the accident. There was strong circumstantial evidence, and only a weak non-denial, that the girl knew her boyfriend would be reading and responding to her texts while he was driving.
The seeming fact that the girlfriend knew that her texts would be read and responded-to while the boyfriend was driving, is a crucial fact (and question of fact that would have to be proved at a trial) on which liability turns. Under the circumstances here – and assuming arguendo that the girlfriend actually knew the circumstances of her texting – I see no sensible reason to hold that the law imposes no duty to the public at large, not to distract the driver and thereby increase the likelihood of a distracted-driver accident.
Let’s try a slightly alternative scenario: A passenger riding shotgun is telling the driver a joke. So far, so good. The driver finds the joke funny, and laughs. OK…. The passenger wants to perpetuate the hilarity, and reaches over and starts to tickle the driver. Hmmm…. The driver laughs uncontrollably from the tickling, and an accident results. Would any reasonable person say the passenger did not share fault for this accident? Would a judge say the tickler has no responsibility as a matter of law?
Let’s make it more clear: The passenger and driver get into an argument. The argument turns physical. The enraged passenger punches the driver in the head; the driver loses control and causes an accident. No one would say the passenger has no responsibility.
The NJ judge found that the absence of the texter’s “physical presence” in the car was a defining distinction. To me, that is a distinction that makes no difference. To me, the crucial fact is that the texting girlfriend (supposedly) knew that her texts would distract the driver, but she didn’t care. She was oblivious to the dangers she caused. Why should “physical presence” or absence be the defining quality here, the line that is drawn? Although clear and easily understood, I think this is a meaningless distinction.
We want our law to be certain, so we know how to conduct ourselves in accordance with it. The problem is that there are infinite variations of circumstances and behaviors, so that absolute lines can’t apply well to the variables of every situation. The number of accidents due to drivers texting is likely to increase, and with that, so will the judicial awareness of the problem. Going back to lawschool 101, “the duty to be obeyed is defined by the danger that is perceived.”
That the judge in this one case did not perceive the danger clearly, and therefore did not recognize the duty, does not provide a long-term remedy. I predict the law will eventually catch up to the danger of texting a driver, and texters who knowingly distract drivers with their texting, will do so at their peril. We’re just not there yet… today.
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In my state, if someone creates a situation that allows someone else to be negligent, the first person isn’t held liable for the harm caused by the second. The girl sending texts didn’t create a danger – she just gave the boy an opportunity to be negligent. He created the danger by making the decision to read texts and write back to her. I’m not familiar with New Jersey law, but if it allows an intervening, human decision to break a causal chain, won’t New Jersey courts continue to rule the same way?
Under the theory that one not present inside the vehicle can be held liable for presenting a distraction to the driver, couldn’t companies be held liable for billboards that are visible from the roadway? If a driver testifies that he was distracted by an ordinary billboard, could the business be held partially liable for the accident?
Of course, the irony would be too delicious if the billboard was an Allstate, Geico or other insurance company sign.
Under the theory that one not present inside the vehicle can be held liable for presenting a distraction to the driver, couldn’t companies be held liable for billboards that are visible from the roadway?
I once wrote about distracting signage that was proposed by GEICO, ironically touting safety.
“We’re just not there yet … today ” and heaven help us if it ever becomes the state of the law. The control of when the text message is read is ENTIRELY in the control of the recipient and that’s where the entire responsibility for when a text is read should rest.
Unfortunately not every ill, real or imagined, is appropriately subject to a civil remedy. I realize that the search is always for deep pockets (or perhaps additional pockets), but seeking to obtain money from the sender of the text is simply creating a second wrong
I think the logical distinction can be found in this part of the hypothetical: “The driver laughs uncontrollably from the tickling.” The key is that it is an uncontrollable response. When to read and respond to a text message is always under the control of a recipient.
“I see no sensible reason to hold that the law imposes no duty to the public at large, not to distract the driver and thereby increase the likelihood of a distracted-driver accident.”
I’ll believe this nonsense when I see all the roadside signs advertising god knows what removed from every stretch of the road. These signs exist to take our eyes off the road. Yet that’s OK? Or better yet, that gigantic TV that drivers on the West Side Highway see as they drive south and get to the sports facility. Talk about purposely distracting the driver. Maybe we can also go after High School kids holding up signs along the side of the road trying to convince drivers to get their cars washed as well. Or we could just hold driver’s responsible for their own actions. Novel thought.
Unfortunately, Mr. Bower’s attempts at analogous situations just are not persuasive. Clearly, the degree of distraction needs to be reasonably considered. Physically touching the driving is a different level of distraction that the toucher should reasonably know could sufficiently distract the driver to affect his/her driving. Perhaps a better analogy would be: Would or should we hold the joke teller liable because the joke distracted the driver. I don’t think so.
I agree with all those who say that the responsibility for if/when to deal with an incoming text lies with the recipient, and a driver has control over his/her own timing. Of course that is true.
However, the law generally recognizes that there can be more than just a single cause of an accident. Several causes can contribute to a single event. I simply predict that eventually, the law will recognize more than a single (driver’s) cause to a texting-induced accident, particularly where it is foreseeable to the sender that the recipient-driver will respond while driving. Whether that is provable in any given situation is a question of fact, no different than other contestible proofs. (Analogize a bartender’s liability for sending a drunk driver out on the road. The driver has control over his drinking. No one forces him to drink and drive. Yet 1the law imposes “dram shop liability” on bars in most jurisdictions.) Again, “scienter” is the key ingredient.
In 15 years, we will know how good or bad a fortune teller I am.
“Would a judge say the tickler has no responsibility as a matter of law?”
Mark Bower has done a good job in trying to compare apples and oranges. But it doesn’t pass the smell test. Notice how it is OK for the passenger to tell a joke, but in the hypothesis, it is the tickling that causes the accident. I would like to see a text message that can tickle or punch a driver. Proximity is key in both Mark’s examples.