How many times have you driven on the highway and passed a car with some thoughtless driver swerving while texting or reading their smartphone? Happens a lot unfortunately, even with the efforts of people like Oprah Winfrey and her no-texting-while-driving pledge. Despite all the public service messages, knuckleheads continue to think they can drive and text with the occasional glance at the road ahead. Too many people are being maimed or killed by these thoughtless and reckless drivers.
I was reminded of this while driving home last night with my wife on the Merritt Parkway. We were nearly sideswiped by some hair-brained woman, cellphone clearly visible in front of her, as she was busily texting. I sped past her and watched in my rear view mirror as she repeatedly crossed the white fog line on the side of the highway. 
There is a plethora of ads by lawyers, standing ready to sue those reckless texters. You see them on billboards and the sides of buses and taxis, those ads often creating another type of distraction. It has become fairly standard to inquire after cell phone records when representing someone in a motor vehicle collision. Clearly, civil liability should attach to the distracted driver. No reasonable juror would hesitate to award damages against the texting tortfeasor.
Now, however, a lawyer in New Jersey is trying to create an additional layer of liability. David and Linda Kubert of Dover, New Jersey were out for a leisurely motorcycle ride when they were struck by a driver who was busy reading a text from a friend. David had his leg torn off in the collision and Linda suffered an amputation of one of her legs. Their crafty attorney sued the girl who sent the text message on the theory that she had aided and abetted the crash.
Their lawsuit claims that the texter knew, or in the exercise of reasonable care, should have known that the recipient of her message was driving when it was sent. A New Jersey judge is now considering the woman’s request to dismiss the lawsuit.
Tort liability is based on the concept of negligence; that is, doing or failing to do what a reasonable person would have done under the same circumstances. In addition there must be proof that the possible harm was foreseeable. So you be the judge. Is it reasonably foreseeable that when you send a text the recipient will be driving and distracted? Those are specific factual questions that courts would need to resolve on a case by case basis.
There are many variables to that issue; too many, claims the texter’s lawyer. Can we assume that when we send a text that the receiver will act reasonably and wait until it’s safe to read it? Texting is almost an addiction. How many people do you know who are constantly with cell phone in hand, ready to respond instantly? But if we attach liability to the sender of the text what about the caller who dials a friend who is driving? The friend answers, is momentarily distracted by the call and an accident ensues. Do we also now allow people to sue radio stations because foolhardy listeners take their eyes off the road to tune in a station?
Apple may be saving lives with its latest release of the iPhone with Siri, its voice recognition software that not only allows drivers to create verbal text messages but will read aloud any incoming texts as well.
Ironically, the youthful driver who ruined two lives for the sake of an instant message was only fined $750.00 and didn’t even have his license suspended. OMG!
