USA - Liability May Follow Those Who Text Drivers

OFF THE WIRE

By MATT REYNOLDS

     (CN) - People who send text messages to motorists may be found liable for road accidents that occur from texting and driving, a New Jersey appeals court ruled.
     Drivers in the Garden State already face jail time if they cause a serious accident while texting behind the wheel.
     The Jersey City, N.J., panel handed down the new standard in a case where a couple on a motorcycle each lost their left legs after they were sideswiped by a texting teenager.
     Kyle Best had been 18 years old on Sept. 21, 2009, when he crossed the center line of road in Mine Hill, N.J., in his Chevy pickup and plowed into the motorcycle carrying husband and wife Linda and David Kubert.
     Just seconds before the accident, phone records showed that Best had had been texting with his friend Shannon Colonna, 17 at that time.
     After Best settled, the Kuberts claimed Colonna aided and abetted Best by distracting him with texts. The trial judge nevertheless placed the onus on Best's negligent driving, finding the girl did not have a legal duty stop texting, even if she knew Best was behind the wheel of the truck.
     A three-judge panel of the Appellate Division reversed Tuesday.
     "We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time," Judge Victor Ashrafi wrote for the panel.
     The 30-page opinion lets Colonna off the hook because it was not clear if she knew Best would read the one text she had sent while he was driving the Chevy.
     Phone records showed that Best and Colonna texted 62 times on the day of the collision, though contents of their messages are missing from the evidence.
     "The evidence of multiple texting at other times when Best was not driving did not prove that Colonna breached the limited duty we have described," Ashrafi wrote.
     Colonna testified that she texts 100 times each day.
     "I'm a young teenager. That's what we do," Colonna said during a deposition, according to the ruling.
     The panel ruled out holding cellphone companies liable for not designing nondistracting features for their products. That would open the floodgates to product liability against not just cell phone makers but manufacturers of things like radios or GPS devices, according to the ruling.
     Judge Michael Guadagno and Judge Marianne Espinosa joined Ashrafi's opinion. But Espinoza suggested in a 10-page concurrence that the court had gone too far, and that tort law already covers such matters.
     "I do not agree that it is necessary for us to articulate a new duty specific to persons in remote locations who send text messages to drivers, and I part company with my colleagues in their analysis of the duty imposed," the judge wrote.
     Slate's Emily Bazelon was skeptical of the new ruling. She noted that 41 states have some kind of ban on texting and driving, but that studies showed that universal bans on all cellphone use are most effective.
     "Passing stiffer state laws to crack down on drivers is more logical and useful than imposing liability on texters who are not in the car, like Shannon Colonna," Bazelon wrote. "The New Jersey judges, though, can be forgiven their howl of frustration. Texting while driving is such a massive and bedeviling problem that it's natural to look beyond drivers to solve it. In the end, though, this is really about them."