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Texting Someone Who Is Driving? Better Not – You Could Be Sued

The era of lawsuits surrounding texting distractions has begun. Be careful of when and who you text!

September 11 2013. Submitted to Lexology by Stikeman Elliott LLP.

A New Jersey court of appeal has moved texting liability to uncharted waters after ruling that a person who sends a text-message to a person who is likely to text back while driving, can be held liable for damages caused by that driver. The text-sender must, however, know or have special reason to know that the recipient will view the message while driving and thus be distracted by it.

In the case at hand, an 18 year-old driver grievously injured two individuals on a motorcycle after crossing the centre-line of the road and hitting them with his pick-up truck. The driver’s 17 year-old friend – Shannon Colonna - was texting him much of that day, including immediately before the accident. The plaintiffs’ argued that Colonna was “electronically present” in the car and therefore partially responsible for distracting him on the road.

Colonna won the appeal, as the Court ruled there was insufficient evidence to establish she knew or had special reason to know the driver was driving at the time of her texts and could, therefore, be distracted by them. The Court, however, agreed with the merits of the plaintiffs’ argument, concluding that “[i]f 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.” As a result, “[t]he sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.”

The decision in this case is part of a general trend by courts and legislatures to crack down on the dangers of texting and driving. This is the first decision that targets text-senders, however, and it will be interesting to see how courts in future cases deal with whether or not the text-sender has the requisite “knowledge” to be held liable for injuries caused by text-recipients.

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