The Legal War Over Texting

We all know that texting while driving is dangerous; it distracts the driver from what’s going on on the road. Anti-texting ads have become popular on T.V., and it seems the general public has become increasingly aware of the dangers of texting and driving. So far, thirty-three states that have outlawed texting while driving.   In 2009, President Barack Obama signed an Executive Order (EO) directing federal employees not to engage in text messaging while driving. ‘The Federal ban sends a very clear signal to the American public that distracted driving is dangerous and unacceptable,’ said Transportation Secretary Ray H. LaHood.  But do text-ban laws really help the problem?

Intriguingly, a recent study found that laws banning texting while driving did not result in a decrease in accidents, injuries, or fatalities and actually may have led to a slight increase in these harms. Linda C. Fentiman, A New Form of Wmd? Driving with Mobile Device and Other Weapons of Mass Destruction, 81 UMKC L. Rev. 133, 135 (2012). Meanwhile, states that have banned cell phone use completely have seen an improvement in highway safety. 13 U. Pitt. J. Tech. L. & Pol’y 1. Is that the answer? Are complete bans on cell phone use in cars the only way to solve the problem?

Instead of waiting for the state law that banned texting while driving to have a deterrent effect, the New Jersey appeals court has decided to take its own action. In a recent case, the court held that someone who is texting a driver from a remote location can be liable to injured people if the driver was distracted by the text and crashesKubert v. Best, 2013 WL 4512313 (N.J. Super. Ct. App. Div. Aug. 27, 2013).  Plaintiffs Linda and David Kubert each lost their left legs when they were hit by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road. Best, 2013 WL 4512313 at 3. The court held 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, and the texter here had no such knowledge. Id. at. 5. In this case, the court found no evidence that the texter knew she was texting someone who was driving. Id.

“It is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action.  ”Id. at 9.  The remote texter was not held liable for the plaintiffs’ extreme injuries in this case. However, this decision signifies yet another danger of texting: courts may soon be able to hold you liable for what your texts cause others to do.

 

 

 

 

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