Can the sender of an electronic communication be liable to persons injured
in a motor vehicle accident caused by the recipient of that communication?
Two courts now say yes. And while all Californians should take note, California’s
employers should be especially concerned.
A New Jersey Court Ignites Liability
In what was believed to be the first case in the nation to confront the
question, a New Jersey Appellate Court held that, under certain conditions,
a person who sends a text message may be held personally liable for a
motor vehicle accident caused by the recipient of that message. [Kubert v. Best, 75 A.3d 1214 (N.J. Ct. App. Aug. 27, 2013).]
The case involved an auto accident where the driver of a pick-up truck
drifted across the center line dividing oncoming traffic and collided
with a motorcycle, which was being ridden by the plaintiffs, husband and
wife. The collision shattered the wife’s leg and nearly severed
the husband’s leg, requiring amputation of both of their left legs.
Espousing a novel theory, the plaintiffs’ attorneys sued not only
the driver of the truck, an 18-year-old male, but his 17-year-old female
companion, with whom he had been texting immediately prior to the time
of the accident. While the case against the male settled, the female moved
the court for summary judgment in her favor, arguing that she did not
have a legal duty to the plaintiffs and, therefore, could not be found
liable to them for any purportedly negligent actions. The trial court
agreed, and plaintiffs appealed the decision.
The appellate court, however, disagreed, concluding that “a person
sending text messages has a duty not to text someone who is driving if
the texter knows, or has a special reason to know, the recipient will
view the text while driving.” (Opinion at 11.)
The court examined the question by analogizing the issue to the situation
in which a passenger knowingly distracts a driver. In such situations,
case law confirms that a passenger in a motor vehicle has a duty not to
interfere with the driver’s operations and can be held liable for
such interference. For example, a passenger’s liability would be
direct and clear if he had obstructed the driver’s view of the road
by placing a paper (or mobile phone) in front of the driver and asking
the driver to look at it. Given this, the court went a step further, concluding
that the passenger could also be liable for indirect distraction by urging
the driver to take his eyes off of the road to observe a distracting object,
“but only if the passenger’s conduct is unreasonably risky
because the passenger knows, or has special reason to know, that the driver
will in fact be distracted and drive negligently as a result of the passenger’s
actions.” (Opinion at 24.) The limiting factor, then, is the foreseeability
of the risk.
Examining foreseeability, the court held that the “sender should
be able to assume that the recipient will read a text message only when
it is safe and legal to do so, that is, when not operating a vehicle.
However, 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. The sender has knowingly engaged in distracting
conduct, and it is not unfair also to hold the sender responsible for
the distraction.” (Opinion at 25.)
The court further determined that it was not unfair to impose such a duty
of care on the sender of a text, because the burden is relatively minimal.
“It is … easy for the sender of a text message to avoid texting
to a driver who the sender knows will immediately view the text and thus
be distracted from driving safely. When the defendant’s actions
are ‘relatively easily corrected’ and the harm sought to be
prevented is serious, it is fair to impose a duty.” (Opinion at 27.)
In summarization, the court explained, “we do not hold that someone
who texts a person driving is liable for that person’s negligent
actions; the driver bears the responsibility for obeying the law and maintaining
safe control of the vehicle. 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.” (Opinion at 29.)
A Pennsylvania Court Follows
In 2016, a Pennsylvania court in the case of
Gallatin v. Gargiulo (Lawrence County, PA, No. 10401 of 2015, C.A.) followed
Kubert’s lead and refused to dismiss claims of negligence against two individuals
for texting with a driver who caused an accident. The
Gallatin case involved a Pennsylvania woman, who—while allegedly distracted
by reading and responding to text messages on her phone—struck and
killed a motorcyclist. The estate of the motorcyclist brought a civil
suit against the driver of the vehicle, as well as the two persons with
whom the driver was believed to be texting.
One of the “sender defendants” argued that the case against
him should be dismissed given that there is no statue or case law that
imposes a duty of liability for a person who merely sends a text message.
Noting that no Pennsylvania court had addressed the duties or liability
of the sender of a text message to a person operating a motor vehicle,
the court looked to
Kubert and the general legal concept that a third party can be liable if she
encourages another in violating a duty, and concluded that the allegations
made by the plaintiff were sufficient for the case to proceed.
While the case has not yet gone to trial, the court effectively ruled that
the holding in
Kubert—that the sender of a text message can be liable for sending a text
message while the recipient is operating a motor vehicle if the sender
knew or had reason to know the recipient was driving—would likely
be the standard applied to evaluate to claims against the defendants.
What Is The Takeaway From These Rulings?
As an initial matter, there is no reason to believe that the
Kubert opinion would be limited to text messaging, but would unquestionably extend
to emails or other direct, reasonably instant communications. Many in
the plaintiffs’ bar have expressed excitement about the court’s
ruling, and it won’t be long before such claims are argued before
courts all across the country. Of course, while there are still many questions
that arise from the
Kubert ruling, here in California, which is known to lean in favor of plaintiffs,
it would not be entirely surprising to see this theory of liability gain traction.
This should be particularly concerning for California’s already weary
employers. While employers have long faced vicarious liability for accidents
that occur when an employee is acting within the course and scope of employment,
this case could signal a significant expansion of potential liability.
In today’s electronic age, employers regularly communicate with
their employees through various forms of technology, including text and
electronic messages that are delivered directly to employees’ phones—wherever
they are and whatever they are doing. Thus, for example, the email sent
to an employee, who the employer knows to be driving home at the end of
the day, could expose the employer to liability for any accident that
results from the employee having been distracted. And it should go without
saying, but the plaintiffs’ bar will be more than happy to dig into
the deep pockets of an employer whenever possible.
Employers should take note and ensure that they have a thorough employee
handbook that addresses the various issues arising from technology, including
a strict policy that prohibits texting or emailing while driving.