The case raises a number of interesting issues. First, may this signify a trend that will spread to other states? Second, as the article points out, it must be proven that the remote texter knew the other texter was driving, thereby encouraging texting and driving. How will this be proven? Third, if this becomes policy or law, does it make sense? Finally, what is a remote texter and/or driver to do to avoid this liability?
Though any other issues will undoubtedly come up as well, we will focus on those above. On the other hand, it is worth keeping an eye on these other issues, which get to the nuts and bolts of liability for the remote texter. For instance, how will liability be delegated between the two texters? Who is more to blame?
There are also insurance issues to be considered. After all, if there is no insurance to invoke, is it really worth suing a high school kid? This leads to the next question. Even if the remote texter is to blame, how would someone injured as a result proceed against the remote texter? Is this considered related to driving thereby invoking auto insurance coverage? Would it come under homeowners insurance if the texts originate from home? Many more will arise as well with perhaps the insurance industry taking the lead in defending on these various grounds.
Can a Trend be Expected?
Getting back to the topics addressed in the ABA Journal article, this is likely to represent a trend. Texting and driving has catastrophic consequences. Distracted driving in fact leads to over 1000 deaths each year according to the CDC‘s Distracted Driving Fact Sheet. Many of these relate to texting. Many more relate to mobile phone use leading to yet another question of whether this comes next.
It is no secret that the government at all levels, from local to national, is attempting to address this issue. There are many laws regarding texting while driving. As far as I know, there are none addressing criminal liability for remote texting. As a result, the civil side will likely take the lead. With this case in place, it can be expected that where texting played a part an accident, there will be investigations to find out who was at the other end.
Problems with Proving Knowledge
This leads to problems with proving knowledge that the remote texter knew the person at the other end of the text was driving. How would this be proven? What level of proof is required? Perhaps, the standard will be “knew or should have known? “Should have known” will raise even more problems regarding proof. The facts of each case will be determinative but rest assured there would likely be few clear-cut cases al a “I know you‘re driving, but I really can‘t help myself.”
In the New Jersey case, it was found that the burden had not been met. However, as noted by the ABA Journal, this was a case of first impression (i.e. first time in court) so the fact patterns necessary to provide knowledge will likely evolve over time.
Is this Good Law?
If it does become a trend in the courts, does the law make sense? Perhaps, the policy makes sense. Obviously, texting and driving can lead to catastrophic results. The wisdom of the policy will come in its application by the courts.
It may be expected that with the door open on these types of claims, there will come many more lawsuits where the remote texter is named as a defendant. It will be up to the courts to determine the fairness of liability in any particular case. It will be up to the courts to hold the parties to the burden necessary to prove knowledge.
After all, without knowledge, how is one to avoid the consequences of the law. And like other areas of negligence, how can you be held responsible for something you could not avoid or prevent?
What Should Remote Texters Do To Avoid Liability?
Obviously, if you know the recipient of your message is driving, then don‘t text. It can wait. Likewise, if it becomes apparent that the recipient is driving, stop texting. Evidence of driving may be explicit or implicit (i.e. “I‘m driving” v. “I am on my way…”).
Little imagination is required to see how remote texters will be put in a bind when the evidence is much less clear. In short, it is hard to know how to behave in the absence of a clear indication of driving.
Avoiding Liability Does Not Mean Avoiding a Lawsuit
It should be noted that avoiding liability and avoiding a lawsuit are two different things. It may be expected that remote texters will start getting named even without clear evidence of knowledge. This will raise the aforementioned insurance issues.
How would a remote texter defend such a suit in the absence of insurance or significant financial resources to expend on a legal defense? The law will evolve over time. In the meantime, there will likely be many innocent remote texters ensnared in lawsuits right along with the guilty.