Novel Appellate Court Decision Finds Liability May Be Imposed for Text Messaging a Driver


September 23, 2013

While most people recognize that a texting driver can be liable for causing a car accident that results in personal injury, property damage and/or fatalities, this knowledge provides little solace to car crash victims hit by an inattentive driver without insurance.  Even when liability is clear because a driver rear-ends someone who has stopped because traffic is not moving, fault of the other driver will not provide much satisfaction if there is no way for the distracted driver to pay a jury verdict or settlement.  A novel new appellate court decision by a New Jersey court suggests that judges may be prepared to apply liability to a new party in personal injury cases involving text messaging according to a USA Today report.

Although our experienced Atlanta car crash lawyers at Montlick and Associates may pursue claims against other defendants in cases where texting drivers are uninsured or underinsured, including third parties driving other vehicles, vehicle manufacturers, employers, vehicle owners and public entities, this approach is only effective if there is a basis for imposing liability on these other parties.  A vehicle manufacturer may be liable for a defect that cause a vehicle to malfunction, for example, while a government entity may be liable for a dangerous road. 

When an investigation of the facts does not support the liability of anyone besides the texting driver, an injury victim may be forced to pursue a claim against the personal injury victim’s own uninsured motorist or underinsured motorist coverage.  However, the scope of the recovery and coverage limits may not fully compensate a crash victim for the entire value of his or her loss.  However, a new appellate court decision suggests another potential defendant in such cases.  An appellate court has ruled that liability may be imposed on the party who sends a text message to a driver.  The court held that liability could be imposed if “a texter knows or has reason to know that the intended recipient is driving and is likely to read the text message while driving ….”

The court upheld the dismissal of the lawsuit by the trial judge because there was no evidence that the person who sent the text message knew the recipient was driving nor that the driver would review the text and reply while driving.  While the court could have simply upheld the dismissal on this basis, the court’s willingness to recognize liability of someone who is on the sending end of a text message suggests a new litigation strategy for victims of distracted drivers.  Although it is not clear whether a Georgia court would rule the same way, this appears to be the first appellate court in the country to determine that civil liability may be imposed on a party who engages in text messaging activity with knowledge that the recipient is driving and will likely read the message.

However, the decision raises as many questions as it answers, such as:

  • What facts are sufficient to find constructive knowledge that the recipient of the text was driving?
  • Can this reasoning be used to hold a passenger liable for distracting a driver by carrying on a conversation or inviting the driver to look at a picture?
  • What constitutes the applicable standard for determining that the message sender should have known that recipient was likely to read and respond to the message?

These questions will only be answered when future courts address this issue.  In an attempt to provide some guidance on these issues, the appellate court indicated that “if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time.”

If you or a loved one has been injured in a collision caused by driver using a cell phone, you may be entitled to financial compensation.  Our Atlanta auto accident attorneys at Montlick and Associates are available to provide effective legal representation to those throughout all of Georgia and the Southeast, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state. 

No matter where you are located our attorneys are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333).  You can also visit us online at www.montlick.com and use our Free Case Evaluation Form or 24-hour Live Online Chat.

Category: Auto Accidents

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