A judge in New Jersey will soon consider a new kind of liability for car accidents: liability for texting someone when you know he or she is driving. This unique legal question arose out of a 2009 crash that resulted in the loss of legs for a motorcyclist and his passenger. The teen driver was texting while he drove into the motorcycle.
Text message records reveal that the driver sent a text, received a response, and composed a text over the span of less than two minutes. No less than eight seconds after he sent the last message, the 19-year-old driver drifted into a neighboring lane and hit the motorcyclist. Cell phone records taken from that time show a call to 911 for help.
The collision severed the motorcycle driver’s leg at the scene, while his wife’s leg had to be amputated later that day at the hospital. Initially, both injured parties filed suit against the teen driving the pick-up truck, as well as his father who owned the truck. Recently, the injured individuals sought to add the driver’s girlfriend with whom he was texting before the crash.
Plaintiffs’ attorneys are using evidence such as a the daily number of texts the two exchanged, as well as familiarity with each other’s daily routines, to substantiate the claim against the texting companion. Deposition testimony of the driver and his girlfriend is also being used to support the allegation that she knew he was driving at the time of the texts. The driver’s girlfriend is trying to discredit the deposition testimony by claiming that she did not know at the time of the deposition that she would be sued, thus she did not have a chance to obtain an attorney before testifying.
The legal issue is particularly interesting to our Illinois car accident lawyers because it is one of first impression, meaning that courts have not previously considered this question. The closest courts have come to deciding this legal challenge is with regards to passengers that encourage drivers to disregard traffic laws. Plaintiffs’ attorneys are by suggesting that the driver’s girlfriend was ‘electronically present’ in his car because she was fully aware he would be driving at that time of day.
The counter argument to ‘electronic presence’ is that someone
sending a text has no control over when or where the recipient receives
and views a text message. If the counter argument succeeds, it would defeat
the causal element of an action for negligence. Claims for negligence
generally require proof of a duty, a breach of that duty, resultant harm,
and a causal link either direct or proximate between the breach and the harm.
Due to no texting laws in New Jersey, the duty and breach of that duty in this case would be relatively easy to establish based on the driver’s phone records. The harm would be the motorcyclists’ physical loss of legs. Thus, the debatable element is whether a causal link exists between the texts sent by the driver’s girlfriend girl his reaction to these messages.
The judge heard the oral arguments earlier this spring and promised to announce a decision by May 25, 2012. Our car accident attorneys are interested in the outcome because a verdict in the plaintiffs favor would create an entirely new field of liability. It is important that injured parties have a full ability to recover for damages against any party responsible for their injuries. In case of a car or motorcycle accident you should contact an attorney as soon as possible to learn of the potential avenues for recovery that may be available to you.