By Peter J. Weishaar

Courts have held that a passenger in a car may be liable if he or she distracts a driver immediately before an accident.  But what about a person sending text messages to someone they know is driving?  

On a dark, rainy night, a man and a woman were driving toward each other on Route 33 in Genesee County.  The man was driving home from work and texting with his girlfriend.  As the vehicles approached each other, his vehicle crossed the center line and collided with the woman's vehicle, killing him and seriously injuring her.

Police determined that the primary cause of the accident was the man's failure to keep to the right of the center line.  There was no evidence that he tried to take evasive action just before the crash - - suggesting that he was driving distracted.  Investigators concluded that the texting “may have been the source of this distraction.”

The injured woman sued the man's girlfriend, “alleging that the collision was caused in part by her negligence in continuing to engage [the man] in a text message conversation despite knowing, or having special reason to know, that he was operating a motor vehicle.”

The trial court granted the girlfriend's motion for summary judgment, dismissing the complaint against her, and the injured woman appealed.  The Appellate Division affirmed, holding that a “person does not owe a common-law duty to motorists to refrain from sending a text message to a person whom he or she knows, or reasonably should know, is operating a motor vehicle.” The Court based its decision on three factors:

  • Noting “a significant distinction between the distracting passenger and the remote sender of text messages,” the Court reasoned that a driver cannot prevent a passenger–who is actually inside the vehicle–from creating a distraction.  However, the same driver “has complete control over whether to allow the conduct of the remote sender to create a distraction.” It is the driver’s duty to see what should be seen and to exercise reasonable care when driving to avoid a collision with another vehicle.
  • The Court also pointed to the danger of opening liability floodgates: “If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities.  A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action.  Each of the foregoing examples is a communication directed specifically at a passing motorist and intended to divert their attention from the highway.”
  • Finally, in reviewing the various laws passed to regulate the use of cellular telephones and other electronic devices by those operating motor vehicles, the Court noted that in passing these laws, the legislature did not create a duty to refrain from communicating with persons known to be operating a motor vehicle.  Instead, “those laws place the responsibility of managing or avoiding the distractions caused by electronic devices squarely with the driver.”

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