On episode 225 of This Week in Law, the panel discussed a recent appeals court ruling in New Jersey. According to a summary by Jeremy Byellin, the court left open the possibility that someone sending a text message to a driver might be held liable for civil damages if the driver is distracted and gets into an accident. I haven’t been able to find the actual text of the decision, so all I have to go on is Byellin’s summary. Given that disclaimer, this seems like a questionable thing to put into a ruling. To be clear, the defendant in this case was not held liable. The court appears to be saying “but if you know someone is driving and will immediately look at your text, you may be partially liable for any damages they cause.”
From a theoretical perspective, it makes sense. If you know you’ll be distracting someone operating a four-wheeled killing machine, there’s a compelling interest to disincentivize such behavior. In the real world, this is tough to prove. The easiest defense is ignorance, since the court required active knowledge to hold a person liable. Unless the driver explicitly said “I’m driving and immediately viewing all messages I receive,” there’s little to prove that the sender had sufficient knowledge to be liable.
Even if the driver did send such a message, it might never see a court room. Because the parties to the conversation would likely delete incriminating messages and most carriers limit the amount of time they store messages, Byellin says “only a very narrow percentage of cases will the content actually be discoverable.”
TWiL panelist Gordon Firemark brought up an interesting point as well. Is the government repsonsible for distracting drivers with Wireless Emergency Alert (WEA) messages? From the New Jersey ruling, the government would not be liable because it could not know if a particular recipient is driving. Still, it’s easy to see how this opens the door for additional litigation. Even if every defendant wins, there’s a real cost to having to defend against a suit.
The slippery slope that I find particularly interesting is the non-SMS case. Indiana’s texting-and driving law was wisely written to cover more than just SMS messages. However, a pedantic reading could apply it to any method of data transfer. GPS-enabled applications, such as Google Maps or Waze, can reasonably determine if a phone is mobile or not. By design, they distract drivers from the road. Could Google be sued for not disabling Maps while the car is in motion?
Probably not. Really, this is all just an academic exercise. To my knowledge, no one has ever been held liable for texting a driver, in part because it’s so monumentally difficult to prove the plaintiff’s case. But the fact that a court would basically invite unwinnable suits strikes as little more than a stimulus program for the Bar Association.