ABA Journal


Tort Law

Can remote texter be liable if driver is distracted by message? Appeals court mulls novel theory

May 6, 2013, 10:32 pm CDT


Does anybody accept respnsibility or their own actions these days?

It's a text message people!! It will not disappear if it is not read immediately. Neither will an e-mail and a caller can call back or leave a voice message.

A driver who interacts in any way with a phone while he or she is driving is solely responsible for the consequences. Period.

By W.R.T. on 2013 05 07, 4:51 am CDT

Yeah, and next we'll have some moron suing Howard Stern because Stern said something shocking and distracted a driver. It would be nice if the court nipped this in the bud, but the comments quoted in the summary are not encouraging.

By Fred on 2013 05 07, 1:53 pm CDT

Seems like you only have problems with duty, breach, and causation with this theory.

By NoleLaw on 2013 05 07, 2:30 pm CDT

Hard to see how this got any traction at all. The whole cell phone industry would collapse if anyone who dialed or texted someone had to worry about being liable if the recipient happens to be driving.

By TMJ on 2013 05 07, 4:04 pm CDT

I think if the GF knew when the BF messaged back multiple times that he was looking at his cell phone while driving, yet she continued to message him, then there could be liability on her part. Or at least, that's the legal argument: Once knowing that your recipient is driving AND responding to your text messages, is there a duty to stop sending messages?

By mmm on 2013 05 07, 5:12 pm CDT

I'm with W.R.T., #1.

By JimB on 2013 05 07, 7:19 pm CDT

This is where our legal system fails us. Next will be making it illegal to write someone a personal email while at work, lest they decide to read it and get fired.


By Toolow on 2013 05 10, 10:53 am CDT

Please I am reading this on my Harley and if anything happens its your fault.

By Tom on 2013 05 10, 11:26 am CDT

so can this be extended to conversations with someone in the car, when listening to radio,

when you grab your coffee and having accident.

or how about when the blue lights go on and you get distracted as you have to pull over...

their an "assumption of risk" on the driver. he knew what he was doing driving. he texted and assumed the risk of causing an accident....

By Jorge M. on 2013 05 10, 11:56 am CDT

@3, NoleLaw, who quipped, "Seems like you only have problems with duty, breach, and causation with this theory."

Well played, Sir, well played. I laughed like hell. Thank you.

By Voice of Reason Prime on 2013 05 10, 12:48 pm CDT

To be fair, if we are going to have these stupid distraction laws, kids and radios should be outlawed overnight.

I say, let's do it. Let's Helen Lovejoy the hell outta these laws!!

By Voice of Reason Prime on 2013 05 10, 12:50 pm CDT

Can remote texter be liable if driver is distracted by message?

I used to believe there was no such thing as a stupid question. No longer.

The whole (or original) point of text messages, which are just an extension of the answering machine, is to leave information to be retrieved later by someone with whom you cannot speak directly at the time.

Even stupider is an appeals court that would give more than a glance and dismiss to the appellant's long shot.
Anyone want to guess where the most (or any) insurance was? Not with the driver at fault, that's where I bet my lunch money.

By Hadley V. Baxendale on 2013 05 10, 1:44 pm CDT

Many of you are pointing out that the driver SHOULD not look at texts while driving. But the facts of the case here is that he was looking at them, and responding, and the texting girlfriend knew that and yet continued to text him. Yes, a general rule that the person not in the car is not liable for the driver's actions is reasonable. But the facts of this case differ from that general situation, and that's why it survived a motion to dismiss.

By mmm on 2013 05 10, 1:52 pm CDT

Ridiculous. No other comment seems fitting.

By NYTC on 2013 05 10, 2:06 pm CDT

@13, mmm:

Judging SOLELY from the article, it could have survived a motion to dismiss simply because a) some idiots want to make more stupid laws, or b) because some smart people want to nip this kind of crap in the bud.

I'm betting on "a". Oh, and I'm betting HvB's lunch money too.

By Voice of Reason Prime on 2013 05 10, 2:07 pm CDT

Voice of Reason -- Since the case is local to me, I've read more on this than the ABA article. The lower court judge endorsed that the plaintiffs had stated a claim against the girlfriend. Duty not to interfere with driver, breached by sending texts knowing the driver was responding, causing an accident in which two people each lost a leg. We'll see if the Appeals Court agrees.

By mmm on 2013 05 10, 2:12 pm CDT

@13 mmm:

You have facts, and you have relevant facts. The "facts that differ from the general situation" are completely irrelevant. Completely, legally, morally, logically and rationally. You may as well say "yes, but this driver was in a pick-up truck and not a sedan."

That is why the question answers itself. I can't even dream up any facts where the person sending communications to a driver could be responsible for the driver's breaking the law or acting recklessly.

Sounds like the kind of thing non-litigators say when discussing trials. Usually they lead off with "well, couldn't you argue that..." at which point you interject, "no. you couldn't. And I certainly wouldn't if I want to keep trying cases."

By Hadley V. Baxendale on 2013 05 10, 2:14 pm CDT

This is not a crazy idea. Can't someone be held at least partially liable if he lends an obviously intoxicated driver his car? If you carry on a text conversation with someone you know is driving, you are creating a similar danger. Of course, a finding of negligence in any given case would be fact sensitive. No one should be liable for sending a text message even if the sender knows the recipient is on the road. The recipient's duty to wait to read and respond when it's safe, and in most circumstances, the sender has no control over the recipient's choice of action. But if the sender carries on a text conversation knowing that recipient is driving, that seems like negligence to me.

By IndyCanary on 2013 05 10, 2:26 pm CDT

Seems the sender may have varied from accepted procedure. Does this make him a textual deviant?

By NOW JERRY BROWN on 2013 05 10, 2:49 pm CDT

The better analogy is leaving keys where a drunk person might find them, take them and illegally drive away. That's a lot different than handing him keys and sending him down the road. But once behind the wheel, the drunk driver will remain drunk, and thus continously act illegally/negligently, and the provider knows that. A texting driver, however, chooses to violate and remain in violation, and that is the crucial difference. Even teenage girls who would "just die" if they don't check the phone every 3 minutes, know they won't.

They say that driving while using the cell phone, even to talk, is equally dangerous as driving drunk, but our society will not accept that premise no matter how well it's proven.

The issue of liability arising from providing another person the means to commit a tort/crime is a hot topic concerning firearms in the home. A part of the issue (unresolved and perhaps unresolvable) is the degree of "providing" when facts will range from literally handing the loaded gun to the person, to leaving the gun unloaded but insufficiently locked.

By Hadley V. baxendale on 2013 05 10, 2:54 pm CDT

What's next? The driver is distracted by a phone call (hands free or not) and the caller is then subject to liability if the driver injures someone in an accident? Could liability depend on the nature of the call? What if it's some sort of family emergency? Very difficult to fashion a rule of law here.

By Peter on 2013 05 10, 2:56 pm CDT

What happens when the inevitable next shoe drops and the guilty (.i.e. at least grossly negligent) driver tries to cross claim against the person who sent them the text? Where will this stop?

By Joel on 2013 05 10, 3:02 pm CDT

Judge Ashrafi misses the semantics in carving out the potential actual cause element. Instead of the following: "But for her sending the text to him, he wouldn’t be looking down.”

It should be read as: "But for his decision to look (down) at the text, he wouldn't be looking down/crashing into others on the road." And this is regardless of whether the girl knew he was driving. Ultimately the choice to look at one's phone while driving is a personal choice. This should not be compounded to another simply because that person got in an accident while choosing to look at their phone. Had he not chosen to look at his phone while driving, then he wouldn't have taken off the legs of these poor folks. The fact that he received a text from anyone, wouldn't change the choice he has to make.

And no, giving up one's car keys to an intoxicated person isn't remotely similar to a person who texts another knowing they're driving.

By Actual Cause on 2013 05 10, 3:05 pm CDT

I was sitting at my desk when it happened. I was drinking a cup of hot coffee, they know I always enjoy a hot coffee in the morning. Then it happened. My phone rang. Being startled I jumped! My hot coffee went everywhere. I would call my attorney but I know he is always enjoys a cup of hot coffee in the morning.

There are phone apps that prevent calls and texts from being received while the phone is moving. This works for the driver but would not be so helpful for the passenger or for people who take the bus.
Liability should be with the driver they are the only ones that know the current conditions. Only one on the road vs high traffic, clear wide road vs narrow twisty road, high speed vs low speed.

In short pull over to text of take calls, responsibility starts and ends with the driver.

By JAW on 2013 05 10, 3:06 pm CDT

I'm sure this was a very serious article but I just can't get past the fact that "Skippy Weinstein" came up with this novel theory. I wonder what Skeeter and Blackie thought about it.

By redwood on 2013 05 10, 3:13 pm CDT

On my drive in to the office today, an aggressive driver honked at me. What if I had lost control of my car?

By Chicago Lawyer on 2013 05 10, 3:23 pm CDT

This is absurd. The legal process is not a game where we see how far we can take it by making cute legal arguments. If there is a way to legitimately fit this into the legal construct, then we should be ashamed and fix that immediately. If there isn't, which seems more probable, then these people should go home.

By Wake Up on 2013 05 10, 3:40 pm CDT

My local coffee shop sold me a cup of coffee in a to-go cup this morning at their drive-through. They knew perfectly well that I would be driving with it. What if I'd gotten distracted by it and plowed into another car? I'm SO going to sue them for even putting me in that possible position.

By Huh on 2013 05 10, 3:44 pm CDT

I saw a photo the other day of a paper coffee cup from a fast food that had printed on it: "This is Canada so we don't have to tell you it's hot."

How can anyone respect our country if our judges let this stuff proceed, and if our "teachers" suspend 7 year olds for pointing pencils at each other (Suffolk, Virginia, last week)?

By Hadley V. Baxendale on 2013 05 10, 4:02 pm CDT

If she reasonably should have known that he was driving, and would be distracted, I'd say she could be held liable.

Sorry. Sort of not my business. But that's the way I see it.

By Tom Youngjohn on 2013 05 10, 5:00 pm CDT

I'm shocked by all the people who don't see the problem here, what are you guys too old? or what? don't you have teenagers friends, kids, cousins, whatever...????

Like # 12 saying message can be retrieved you guys live on a different planet? don't you see teenagers all over this country only communicating by text messages?

So, no, text messages in this conext is not sent to be retrieved later, it is sent to be RESPONDED to immediately.

All of you guys just going about how ridiculous how this argument is, for god sake there 62 messages exchanged before the accient, that's like a debate on the congressional floor going on...of course the guy was going to hit long would it take to read/send 62 messages? I'm guessing a long period of time ...

So the argument that she didn't know that he was doing is just whatever, she knew and she kept texting him.

Yes, good fact make bad law...sorry guys!

I strongly believe that some message needs to be sent to all these punks out there texting and driving and also the other ones driving and talking on their phones. You wanna die feel free but don't involve other poeple in your stupid decision-making proces.

People are dying. I just read a report in the new york times or some other newspaper that says deaths caused by accidents related to cellphone use are waaaaayy under-reported.

This couple lost a leg each for god sake.

I call my friends, the first thing I do is ask them 1) is this a good time to speak and 2) I ask what they are doing. I ask these two questions for two reasons 1) first questions is simple curtesy is they are busy I don't want to bother them. 2) second reason is I want to use my own judgment even if they think it's ok, if they are driving I'm hanging up.

I truly hope the court will create this precedent.

By He IS on 2013 05 10, 5:26 pm CDT

I would think the intervening and superseding negligence of the driver who read the text would defeat the claim against the texter.

By kc on 2013 05 10, 5:38 pm CDT

@31 you make a valid point. But how do you apportion liability between the BF and the GF? Should the parent be held liable for what negligence is attributable to the GF? Will insurance carriers cover this under the general liablity coverage in the parents HO policy? Should they? Should knowingly texting someone that is driving be a crime?

By redwood on 2013 05 10, 5:40 pm CDT

Tom, I have to strongly disagree. The person sending the text can't possibly know exactly what the conditions are at the moment the message is sent. The recipient could be sitting at a long red light, or driving on a long, straight, open road, etc. When all is said and done, the DRIVER is responsible for the operation of the vehicle. As others have noted, there's nothing compelling the driver to look down at his phone when it's not safe to do so.

By the way, there were a couple comments earlier about this lawsuit surviving a motion to dismiss. According to this article, it did NOT survive a motion to dismiss. The judge [correctly] dismissed the case and the plaintiffs are appealing that decision.

By emjaycee on 2013 05 10, 5:44 pm CDT

Seems like a good case. I don't see why people don't see the potential of having the sender liable. it is similar to the Rescue Doctrine.

The Rescue Doctrine of the law of torts holds that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. This doctrine was originally created in case law by Wagner v. International Railway.

The tort feaser knows or should know that if he creates a hazard that injures someone, it it highly likely that someone will come to assist an injured victim from the hazard he created and as such he liable to the rescuer.

Apply this to texting, a person sending a text message knows or should know that his act is likely to cause distraction/accident if he knows recipient is driving. Of course the facts will have to help make this solid.

In this situation it seems easy to establish - without having looked at all the facts - 62 messages proves she knew he was driving and kept texting.

And just for the fun of it, let's make the First Text Free like with dog bites, First bite does not cause liability for dog owners.

Seems doable to me...

By He IS on 2013 05 10, 5:44 pm CDT

@33 - I responded in #35

By He IS on 2013 05 10, 5:46 pm CDT

Motion to dismiss. No duty. The duty is the driver's to operate the vehicle in a reasonably careful manner. No doubt there are many types of distractions a driver must face. Anyway, I'm just guessing that this is either an insurance company and their lawyer trying to push some liability onto a remote third party. (A trend I've been noticing) Or, it is a case where the defendant had no insurance and the plaintiff is seeking some coverage from somewhere else... like a homeowner's policy, for example.

By Pierce on 2013 05 10, 5:54 pm CDT

I take part of my comment back. It says right up there at the top of the article what happened. That's what I get for not reading anything but the headline. Sorry, I guess I was distracted.

By Pierce on 2013 05 10, 5:58 pm CDT

So, it appears that the article was misleading and, rather than a text message that could be retrieved later (see @12. Hadley V. Baxendale) this was an ongoing conversation with somebody not in the car who knew the other side of the conversation was driving (see @13 mmmm). My question is:

"Why do we keep getting ABA News articles that leave out the key facts?" If I want to discuss a non-existent issue, then I'll watch whatever the current legal/political series is (e.g., L.A. Law, the West Wing, the Practice, Boston Legal).

Here the issues is whether there is POTENTIAL liability when you continue to text with somebody that you know is currently texting while driving. That is not the same as leaving keys where a drunk driver might find them and take the car or leaving a closed alcoholic beverage within reach of a driver who could later drink it. Here the allegation appears to be a knowing participation in an ongoing activity that is potentially highly distracting and easily avoided. That's a much closer case than, the article's version that the girl texted her boyfriend and he looked at it while driving.

By Charles Victor Szasz on 2013 05 10, 6:09 pm CDT

Lunacy. The action of the jerk who reads the text is novus actus interveniens.

Having said which: I recently sat on a case here (England) of driving without due care and attention. An offence committed by more men than women; except that this defendant was driving whilst breast-feeding. I kid you not. She drove into another car whose driver, male, and very much a gentleman, turned his back until she had finished and only then rang the police.

She was fined and got "points" on her licence (too many points in too short a time and you lose it, and we have no drive-to-work privileges) and after she and her lawyer had left everyone in court, male and female, started giggling like so many smutty schoolboys.

By Andrew on 2013 05 10, 6:55 pm CDT

@37 and others who think this case is frivolous. It seems like we are having a healthy debate here. That's great!

That's exactly what we all want, isn't it? The difference in views raised here shows that there is enough issue of fact that the case should go to a jury. We just want a jury to decide whether someone who exchanges 62 messages before the accident has any responsibility in this accident.

We are not deciding the case here, we are just trying to see if there is enough issue of fact that supports that the case goes to the jury.

The answer here seems to be yes, 62 text messages to someone is driving is an issue of fact. Jury will have to determine whether she knew he was driving (better he was driving in a mountainous area as stated in the article) and whether she should be liable.

I don't understand why is everyone is freaking out, this is like any other tort case where you have several defendants, potentially, jointly and severally liable. I don't think she should be 100% but some precentage of responsibility there...Juries decide these responsibility percentages in tort cases all the time.

Easy stuff...let it go forward.

By He IS on 2013 05 10, 7:03 pm CDT

@ 41. I disagree. The concept of "negligence" means you must prove duty, breach of said duty, causation in fact, proximate cause, and damages. "Duty" is a question of law not of fact. Now, if you want to expand the legal concept of duty in this situation I think you are opening the door wide to basically saying everyone owes a potential duty to everyone else in all circumstances no matter how far removed.

For that matter, is it not foreseeable that at any given moment somebody might be using a lap top and reading your post while driving at the same time? Shouldn't we all be potentially liable under your theory of expanded duty? I bet we can have healthy debate over that too. It doesn't mean it passes legal muster and goes to a jury.

Even if you could, as one of the justices seems to point out, frame the issue of duty; how could you apply it so as not to create an absurd over-reaching result?

By Pierce on 2013 05 10, 8:20 pm CDT

@ 13 MMM. The Article says the trial judge dismissed the case against the girlfriend. In other words, it did NOT survive a motion to dismiss.

By Pierce on 2013 05 10, 8:24 pm CDT

#31/41, He IS -- The precedent you (and others) call for is the precedent to hold a third party accountable for a decision made solely by a bad actor. When I was a kid, and one of my brothers would tell my mother that they did something wrong because "their friends told them to" or "their friends were doing it, too," she'd say "If your friends jumped off a cliff, would you do it, too??" and I would imagine that if he was stupid enough to actually jump off a cliff one day, she wouldn't blame his friends, or their parents, or some kid on a cell phone in the next county -- she'd blame the boy for his own stupid mistake. The moral of that "momism" is that no one "makes" us do anything; we choose to do it. At 8 or 9, she expected us to know that; by 16 or 17, everyone should know it.

My kids have cell phones, and they send thousands (TENS of thousands, sometimes) of text messages per month (fortunately, we have an unlimited text plan...). If I call or text my son while he is driving, I will not hear back from him for a while. When he does return my call/text, he explains that he was driving, and that his cell phone was IN THE BACK SEAT, WHERE IT BELONGS. I know people don't like slippery slope arguments, but this is one of the worst I've ever heard -- as evidenced by the statement from the appellate judges ("how do we write up that duty so it is applied the right way?"). If we start holding people accountable for actions over which they have no direct control or influence, what is the limit? A negligent act must have a causal relationship with the harm suffered; and for an actor to even be negligent, he/she must have a duty of care. To say that a 17-year-old girl has a duty of care in the operation of a vehicle miles away from her by someone over whom she has no actual or legal influence or control is just nuts. Regardless of what the girlfriend "expects" the boyfriend to do regarding answering texts or phone calls, the law, safety rules, and common sense require the boyfriend to keep his hands and eyes off the phone and his attention on driving. As a matter of law, and therefore properly decided outside of the purview of the jury, the girl does not have any duty of care to a motorcycle rider and his passenger when she has no actual control or influence over the operation of any vehicle that presents a potential danger. As I said above, the fact that she sent a text message does not obligate him to answer it; his phone should be in a bag, behind the seat, or even in the trunk, where he can't reach it; not in his hand, with him sending texts back and forth to anyone. That's his fault, not anyone else's. Otherwise, where does it end? If we can hold the girlfriend accountable because he was texting while he was driving, can we hold the cell phone company accountable for allowing the phone to work while the vehicle was moving? How about the car manufacturer for not having a jamming device that interrupts cell phone signals while the engine is running? What about the guy in the car behind him, who saw him on the phone and didn't report it to the police?

What's scary is that having said that, I now realize that someone will think that those are good ideas....

By sb on 2013 05 10, 8:32 pm CDT

Even before reading this story, I was wondering this week what about a person who drives off the road into a tree because he or she was being told upsetting news, or being engaged in an emotional fight, in a phone call from a spouse who knew the driver was on a trip home. I know enough not to raise a touchy topic shortly before it's time to go to sleep; so why not during driving? (Keeping them on the phone at all while they're driving is negligent enough for their safety - and for liability to be ticketed.) The risk is real; the fault is real.

But you've got to draw the line somewhere. How about urging someone to hurry home, so they speed and crash? How about keeping someone up late talking the night before a road trip, so they get drowsy and crash? How about . . .

Even apportionment of liability can be insufficient to reduce the legal blame on a party whose fault is so attenuated by such factual circumstances. There ought to be some higher standard of fault, such as there is with punitive damages (gross negligence, reckless disregard).

By Avon on 2013 05 10, 8:32 pm CDT

Also, by submitting this to a jury, you have to remember that that means thousands of dollars in legal fees and costs must be expended by that defendant. As good as I am at reading an insurance contract, I have yet to see one that will cover this type of liability; I doubt even an umbrella policy will protect or provide defense counsel against a claim of someone else's negligence.

I can see it now: He IS representing the plaintiff in an action at law against the victim of domestic violence for contributory negligence, where a jealous boyfriend shoots at the victim, misses, and hits someone else. Causation to be submitted to the jury: The victim upset the assailant by failing to put the right kind of butter on his toast, and then once she had been beaten, choked, and burned for said buttering (by placing her hands inside the toaster and turning it on), left the boyfriend to seek treatment and assistance for her injuries and abuse, thereby placing the general public at risk of being harmed by his criminal acts. The victim had a duty to remain in the abusive relationship so that the boyfriend would not get angry with her for leaving him, and by doing so she violated her duty of care to the people around her to deter and prevent the retaliatory violence, which was a probable and foreseeable result of her actions. Heck, she might even be reckless under those facts -- she willfully and knowingly acted without regard to the safety of the general public, when she knew or should have known that such violence was likely to occur as a result of her actions.

***DISCLAIMER: The events described herein are fictional. Any similarity to any actual persons or events is not intended.

By sb on 2013 05 10, 8:53 pm CDT

Avon, your argument ignores reality. A telephone conversation requires the active, willing participation of both parties; if one party hangs up, the conversation is over. I don't care what social norms require during telephone conversations; if you are driving, those same social norms (and the law, in most places) require you to either hang up the phone or pull over. No one can "keep you on the phone," and if they could, they certainly couldn't make you drive your car while they did it.

By sb on 2013 05 10, 8:56 pm CDT

@44 You got it. Couldn't agree more. And, no sooner did you say it..."can we hold the cell phone company accountable..." than the wheels began to churn. LOL!

Yet, I must say you might be on to something here:

Let's say we expand the entire concept of duty as some others here would argue. No doubt, as I am writing this, the plaintiff's lawyers in the case at bar are squirming because they named the wrong party, the girlfriend, instead of the one with deep pockets, the phone company. Since we are going to expand the concept of duty to virtually endless absurdities and since these particular lawyers only had just enough rope-to-hang ...'er....I mean ...uh .. .enough imagination, that is... to sue the girl and not the phone company I think they should notify their malpractice carrier. It works both ways doesn't it? Did they not have a duty to sue every likely defendant?

By Pierce on 2013 05 10, 9:07 pm CDT

sb: A contact of mine at the New York Bar used to say that it was only a question of time before a rapist sued his victim for giving him AIDS . . .

By Andrew on 2013 05 10, 9:59 pm CDT

No offense, but it seems hard for me to believe that some of these comments are written by lawyers. The law draws reasonable lines all the time in all manner issues, and we often leave it up to a jury to determine if a defendant has crossed the line. So no, holding a person negligent for knowingly carrying on a text conversation with someone who is driving does NOT mean that the cell phone maker is liable or that we need to outlaw car radios or that the rapist can sue his victim for contracting an STD. Everything can be turned into a slippery slope to absurdity if you really try. Let's think like lawyers instead.

By IndyCanary on 2013 05 10, 10:32 pm CDT

Hey, sb #47 and others, are you just ignoring it when somebody says their idea is just an idea?
I said, "you’ve got to draw the line somewhere," and proceeded to extreme examples to prove it.
And I didn't make any "argument;" I was explicitly just "wondering" how far liability could go.

I still have no idea exactly how far is too far with legal liability. But I am certain that well beyond the extent of legal liability, a spouse would feel deeply guilty and remorseful if she or he had kept us on the phone (so to speak) at the time we crashed and died. People beat themselves up over a lot less!

We're too quick here to assume/insist that if you're at fault at all, you have to bear 100% of the fault.

By Avon on 2013 05 10, 10:34 pm CDT


Yes. The court draws lines all the time. Agreed. But, in this case it seems that some lawyers, yourself included, don't want that line to be drawn. However, most of the lawyers here are advocating that it is drawn as a matter of law with the issue of "duty". You, on the other hand, are advocating that the court avoid drawing any lines and allowing this charade to take place in front of a jury. Not all cases should go to a jury and for good reason. And... I think you make our point when you say "everything can be turned into a slippery slope to absurdity if you really try". The point being: where does it end? Why do you think its okay for a jury to hear this case but not, for example, the cell phone maker? If you were paying attention at all you would realize that none of us was actually advocating these things. We were pointing to the absurdity of them.

By Pierce on 2013 05 10, 10:56 pm CDT

So they each got $250,000 for a lost leg? And if they were athletes, how much money they could make using their legs? Millions? It's not like a new one is going to grow. And as to the driver - did he really care about her, about their relationship? By reading texts while driving? What if he got killed because of doing that? Where the relationship would be? I think there should be a solid jail sentence (3-5 years at least) for reading or writing any kinds of e-mails, texts or any other messages while driving. Stop, park, then read.

By Anna Gray on 2013 05 11, 8:00 am CDT

53: indeed, but the question is that of civil liability - specifically that of the texter or caller.

By Andrew on 2013 05 11, 9:05 am CDT

The few folks who actually make the argument in support of this (notably #31, 35 He IS and Tom Y.) seem embarassingly detached from the concept of personal responsibility.

So what if there were 62 texts? There should/could have been one. He should have shut his phone off if she kept texting, or...wait for it...he could've pulled over and parked, shut his car off, and called/texted, sucked his thumb, etc, until his heart was content.

He IS, you write as though you are a member of this suit. If should get in it, could be something for YOU too. (I mean, after all, the article and your opinion has already cost you time and maybe some emotional stress that wouldn't have happened if ABA didn't report it in the first place.) You can't be blamed for that, you should receive some compensation.

Responsible mature adults who make bad decisions do not to blame others for their actions.

By Toolow on 2013 05 12, 11:42 am CDT

I am a lawyer, and this kind of patently stupid reasoning is the kind only a lawyer could assert.

If my phone rings while I am driving, I am not obligated to answer it. A transcendent concept, I know. I'll accept my Nobel Prize in due course.

Just because I send a text message to a driver of a car (even if I know that the driver is in the act of driving at the very moment I am sending text messages) does not mean that I am responsible for the driver's choice to read those text messages. And how do I know the driver won't wait to respond to my text messages until he reaches a stop light or pulls over and parks? This kind of garbage is what gives lawyers their so well-deserved reputations as sophisticated thieves.

By Eric K. Johnson on 2013 05 12, 5:59 pm CDT

Now wait just a darn minute. As someone who may soon be a bartender, and as a licensed mixologist, and as a normal, Moses loving person, (okay, I love Jesus more, whatever), I understand society's need for finding responsibility. Who was holding the grenade last, as it were, and what did she do with it? If I'm a bartender, and someone is apparently intoxicated on my love, and I give him some more, knowing that he'll be blinded by it and may be a danger to himself or to others, then, damn it, it is my responsibility, no, it is my job, not to give him any more, not until he's ready. I proposed a two prong test. I'll stick to my gun on this one.

By Tom Youngjohn on 2013 05 12, 5:59 pm CDT

If she reasonably should have known that he was driving, and would be distracted, (either by reading or by answering the text while he's driving), she can be held liable. This is a factual finding, and the jury, as always, should be informed of the possibility of "jury nullification" and how they won't get in trouble for it. (Of course I say "should" because that is the way it should be, not the way it is.)

By Tom Youngjohn on 2013 05 12, 6:46 pm CDT

Tom Y., I waited a darn minute, and I find your analogy of the bartender/customer situation and responsibility to a person emailing/texting/calling someone while they're driving absolutely pathetic.

The bartender, as you said, has a duty because it is his job to serve intoxicating drinks to a customer, and by standing behind a bar for hours on end, has a special perception of the potential for the customer to be too intoxicated. He is able to keep tabs (pun intended) on him, and it is his "duty" to do so. The same does not, and should never, apply to the above-reported scenario. The pandoras box would be incalculable...and stupid.

By Toolow on 2013 05 12, 10:00 pm CDT

The analogy also breaks down because in most states a duty is imposed by dramshop laws. The legislature will need to impose a duty in order for the GF to be liable. But the analogy as a matter of public policy may be a reasonable one. While obviously the BF should be the most responsible party, I think imposing liability in this situation merits legislative debate.

By Redwood on 2013 05 12, 11:32 pm CDT

One also has to remember that this theory of liability is the product of Skippy Weinstein which makes it more difficult to take seriously.

By Redwood on 2013 05 13, 12:48 am CDT

I know this is obvious, but I should have put a colon in this. Forgive me? "If she reasonably should have known: 1) that he was driving, and 2) would be distracted." In other words, she had to reasonably know both of these two things, before hitting "send.".

By Tom Youngjohn on 2013 05 13, 1:07 am CDT

So if this carries through, is McDonalds liable if you crash while eating food that is consumed while driving? (That Is what most people use the drive-through for, of course.) These arguments are getting absurd. No one forces the driver to commit any action he chooses in addtion to the driving. He alone is responsible for operating the car.

By Shannon on 2013 05 13, 3:56 pm CDT

Many states are passing legislation that punishes distracted driving specifically in relation to cell phone use. Most would agree that a distracted driver using a cell phone should also be liable for any injuries that result. I expect that most people would support other types of legislation to discourage distracted driving. The driver distracted by a cell phone call is generally engaged in a conversation involving two or more people. If the person or persons are aware that the person they are speaking with is driving shouldn't that person be encouraged to call at a later time or to pull over? A statute which in some fashion punishes a non-driving participant who knowingly carries on an extended conversation by email, text or phone with someone who is known to be driving is worth debating. All of the slippery slope arguments can be debated in a legislative setting. Of course the devil is in the details and most legislators are too busy worrying about how to get re-elected to be concerned about such mundane matters, but the issue does seem worthy of legislative debate.

By redwood on 2013 05 13, 4:49 pm CDT

While not quite the same, Sue Ellen Mischke wore a bra as a top on the street. This caused Kramer to crash George's car when he and Jerry saw her walking in her bra down the street. Kramer hired Jackie Chiles, Esq. to sue. The case went poorly when Kramer took the advice of his caddy instead of his lawyer. In any event, distractions come in every variety, such that the driver must ultimately take responsibility for safe driving.

By Stanley Feldman on 2013 05 13, 7:29 pm CDT

Thankfully only a handful of people here find this to be "worthy" of legislative debate. Let's hope the only extensive debate ever on this stay in this article.

@ 64 "Shouldn’t that person be encouraged to call at a later time or to pull over?" As a courtesy, not a legal obligation. There is no duty (nor should there ever be) that you "encourage" others to follow the law. I'm glad most legislators are busy trying to get re-elected. I find much more logic and reason in that than ever taking this to issue!

@63 and 65, thank you.

By Toolow on 2013 05 14, 7:18 am CDT

No one is saying that the driver should not be held liable, or even primarily liable. The one issue is whether the girlfriend was also negligent and partially at fault. Remember, classmates, the concept of due care--what the reasonable person would do under like circumstances. Would the reasonable person carry on a lengthy text conversation with someone he or she knows is driving? And unlike the woman famously burned by hot coffee, this case does not involve victims who may have contributed to their injuries. The people hit by the car were in no way at fault. Shouldn't they be able to recover from everyone whose negligence caused their injuries?

By IndyCanary on 2013 05 14, 1:09 pm CDT

@67 Well said.

By redwood on 2013 05 14, 2:06 pm CDT

Even if the victim did contribute to their own fault, most states require a jury to apportion the percentage of fault (total 100%) among those whose negligence contributed to the injury. If the victim is 40% responsible and the jury decides the injuries are to be compensated at $50,000, then the victim collects only 60% of that ($30,000) from those whose negligence amounts to 60%.

As for the McDonalds coffee example, I object!!
Ms. Liebeck's scientific experts proved to the jury's satisfaction that the lid was defective and popped off, and that the franchise served the coffee far hotter than McDonalds' standards permitted. (Indeed, McDonalds had fined that franchise for that offense previously.) She required numerous surgeries on her second- and third-degree burns (she was seatbelted into position at a drive-up window, and couldn't escape the coffee); her medical bills were in six figures. Because the McDonalds corporation itself wasn't actually negligent, the $3 million punitive verdict against them was thrown out by the courts, and she collected only slightly more than the amount of medical bills, even though she never walked normally again. You can look it up. (Please do.)

That jury verdict has been fodder for so much insurance-company PR over the years, at the expense of truly informed public opinion, that the insurance industry has surely avoided billions of dollars in payouts to victims as a result of jury skepticism in deciding negligence lawsuits. Good for them; bad for the safety of Americans.
I object to anybody, ever, using that case as an "example"!
Except, perhaps, as an example of how miserable it is to be a plaintiff.

By Avon on 2013 05 15, 12:53 am CDT

#69. To clarify, I was not dissing the woman who was burned by the hot coffee. I would totally respect they jury's assessment of the evidence in that case. I was only using it as a comparison with the victims in the current case, who no one could even argue were remotely at fault.

By IndyCanary on 2013 05 15, 4:20 pm CDT

Did Colonna owe any duty to the plaintiff? I don't think so. I can't imagine the court sending tort law down that slippery slope, as numerous posters have suggested. Where would liability end in that case?

By Mark on 2013 05 16, 2:02 am CDT

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting is not available in this channel entry.