Text-message senders, beware: U.S. courts are moving ever closer to blaming the sender of a text for car accidents that occur when the recipient is driving and texting back.
How could someone be responsible for an accident caused by a driver when they weren’t even in the car — and could theoretically be miles, or even half a world, away? I explored this only-in-the-digital-age notion several years ago in “The Red Tape Chronicles,” when a New Jersey man was sued after he texted with a woman around the time he struck another car, causing two other people to lose both legs. Briefly, the legal theory relies on the notion of “aiding and abetting” an act that causes harm (a tort) to someone else. The plaintiff’s attorney in that case compared sending a text to a driver with holding a piece of paper in front of a driver’s face, causing temporary blindness, leading to an accident.
That 2012 case, which gained national attention, was decided in the defendant’s favor, to the delight of critics who thought the notion was absurd. But while media cameras were focused elsewhere, a New Jersey appeals court left the door wide open for future lawsuits against text message conversation participants outside the car.
A Pennsylvania case has now opened that door even wider.
A Lawrence County court recently ruled that a plaintiff may proceed with a lawsuit that will attempt to collect damages from a text sender after the recipient was texting and failed to notice that a motorcycle rider in front of her had slowed to make a turn. The driver, Laura Gargiulo, struck the motorcycle and dragged rider Daniel Gallatin 100 feet, killing him.
Gargiulo had received texts from both Joseph Gargiulo (relationship unclear from court documents) and Timothy Fend, whom the court describes as a “paramour,” or lover. Both are named as defendants in the lawsuit.
Laura Gargiulo pled guilty to involuntary manslaughter in 2014 and served 60 days in jail for the death. Now, the Gallatin estate is suing for damages. Both Fend and Joseph Gargiulo filed objections to being included in the lawsuit, saying no law creates a duty that text message senders can be responsible for the actions of a recipient who is driving.
But Judge John W. Hodge sided with Gallatin’s lawyers, indicating it was possible they could prove later that Joseph Gargiulo or Fend “aided and abetted” violation of the state’s distracted driving laws.
Hodge relied on that New Jersey appeals court ruling in his decision.
“Although not binding on the court here, (that ruling) suggests that the sender of a text message can be liable for sending a message while the recipient is operating a motor vehicle if the sender knew or had reason to know the recipient was driving,” Hodge wrote.
The ruling is not a clear finding that texters outside a car can be responsible for accidents caused by a driver; It merely extends the possibility for such a finding a bit farther down the line. In fact, in the New Jersey case cited by Hodge, the court was actually upholding a lower-court finding that a defendant in a similar crash was not liable — but only because the facts of that case made it difficult to conclude the sender knew the recipient was driving. The appeals court went to great pains to make clear it might find for a plaintiff in the future.
“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” New Jersey Superior Court Appellate Division Judge Victor Ashrafi wrote.
Citing that opinion, Judge Hodge merely refused to remove Joseph Gargiulo or Fend from the Gallatin lawsuit for now. There’s still a lot for the plaintiff to prove. Still, the case should give anyone texting with a driver serious pause. While drivers are ultimately responsible for what their vehicles hit, it’s easy to imagine a situation where a text message sender should know better. For example: the driver could directly respond, “I’m driving right now.” And if the sender persists in doing something specifically designed to be distracting — such as a flirtatious message — one can imagine a plaintiff’s attorney pursuing the aiding and abetting theory.
What’s your personal policy around texting and driving? Share with us in comments below or on our Facebook page.
More from Bob Sullivan:
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