May 31st, 2012

Can There Be Liability When Texting to A Driver – Pt. 2 (Point/Counterpoint)

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.

May 31st, 2012

Can There Be Liability When Sending Texts To A Driver? Pt. 1 (Point/Counterpoint)

Today’s post is a two-parter, this representing a debate between two New York attorneys over a recent case in the news: Suit was brought regarding a car accident and the plaintiff sued the person repeatedly texting the driver, claiming that she should be held to be partly responsible for distracting the driver. The texter was not in the car. The novel case was tossed last week by a New Jersey court.

Stealing a page from 60 Minutes’ old Point/Counterpoint, and the delightful send-up of that show on Saturday Night Live (Jane, you ignorant slut…), we hear first from Ray Mollica. Mark Bower responds in the second post:

——————————————-By Ray Mollica

When I heard about “Skippy” Weinstein’s lawsuit which sought to pin liability against a young woman on the basis that she had sent text messages to her boyfriend while he was driving, and thus contributed to the cause of what was a horrific accident, I did a mental version of the facepalm. I immediately felt this was frivolous litigation and no good could come of it.

As the day went on, and discussions and comments with colleagues were had, it turned out that many in our profession did not agree with me, or at the very least, thought we should give a lawyer named “Skippy” the benefit of the doubt, as he was just doing his best for two clients who each lost a leg. Well, being who I am, I respectfully still believe I am right. Check that; I know I am, and my reasoning is fourfold, beginning with the more practical and moving outward to somewhat esoteric.

Initially, my thoughts went back to first year law school, and the elements of a tort: Duty, Breach of Duty, Actual Cause, Proximate Cause, Injury. Well, in this case we know of the actual cause: a car striking two very unfortunate persons on a motorcycle; and the proximate cause: the driver of the automobile being careless enough to distract himself by looking at a text message on a phone. The duty? Well, the only duties involved were those related to the driving of a motor vehicle. However, there was never any duty on the part of the texter. Rather, there is no duty recognized anywhere for a person sending a text, so therefore there can never be a breach of a nonexistent duty.

Next, my thoughts turn to the idea that should this theory be upheld by a malleable jurist, it would set the motor vehicle litigation industry partially on its ear. Without wanting to sound alarmist, it occurred to me that much energy would be devoted both pre and post-suit into finding out who, if anyone had texted or phoned the defendant driver at any time vaguely contemporaneous to the subject accident so that this person [persons?] could then be added as either direct or third-party defendants. Knowing that my adversaries had third-partied people with only the most tenuous theoretical liability [the driver of the car that was rear-ended at the stop light] it was no long stretch it was a near certainty to come to pass.

Furthermore, considering the often [though not always] overreaching blanket demands for cell phone and social media records, now it would appear that cell phone records would have to turned tuned over, including text messages, as a matter of and now under the rubric of “material and essential for the defense.” In this day and age of smartphones, this would include emails – emails that some might not want disclosed for a myriad of reasons, including attorney client privilege.

This moves me to the next point: for many reasons the public hold us in relatively low regard. As the old joke goes: “What do you call 500 lawyers on the bottom of the ocean? A good start.”

As people who sent texts to drivers – whether they had a reasonable belief that the person was driving and therefore liable will only be answered by litigation – involved in an accident are more and more drawn into lawsuits for reasons they will not find clever, or appreciate the attorney’s out-of-box thought processes, the status of our chosen business will become inexorably lower. They will hate us all the more, these jurors of ours, these voters being asked to support tort litigation reform. It would be terrible publicity, and “Skippy” Weinstein’s case already has been.

In the realm of public relations the “Trial Lawyers” are always fighting an uphill battle, and Mr. Weinstein and his 15 minutes just made the slope a few degrees steeper. This is just more ammunition to use against the plaintiff’s bar in a world where reading the comments section to an article relating the horrible story of a child killed by a mechanical rolling gate can make a practicing attorney nauseous.

Rather, it behooves attorneys to occasionally take a step back and look at the big picture. And the big picture is that while Mr. Weinstein was creative in trying to help his own grievously injured clients, it was bad for the rest of us as it made that many more people say “look at these lawyers!” and shake their fists at the sky in disgust.

Finally, as personal communication technology has exploded in the last decade, so has the attempts of the insurance industry to invade the spheres of cell phones and social media. I am of the opinion that we are rapidly creating a private [as opposed to governmental] “Big Brother” with companies seeking the authorization to access, read and download facebook pages, email, cell phone records and now text messages. Whenever a defense attorney asks my client if they have a facebook account, or I get a demand for some similar type of disclosure, I can’t help but ask myself if this is the world we want to live in. So I ask: is this the world we want to live in? Where every text is potentially an actionable deed? Will people in the future have to report their teenagers average daily texting for their homeowner’s policy?

As of this writing I have learned that the Morris County Superior Court Judge David Rand granted summary judgment dismissing the negligent texting claim. But the cat is out of the bag. There will surely be another case with very specific fact, and some other practitioner will do their damnedest to think out of the box, and differentiate his case from Mr. Weinstein’s, and we’ll be here all over again.

(Mark Bower responds here)