Court Says You Can Be Liable For Merely Sending A Text Message To Someone Who's Driving
from the can-you-here-me-now? dept
We’ve covered stories stemming from texting and driving issues for quite a while here at Techdirt, typically taking the position that all the clamoring for new laws is needless grandstanding when current laws on the books could be applied readily. That said, at least most of the talk about new legislation has centered around making texting illegal for the person who is driving. You know, the person piloting the huge hunk of metal that can kill people.
But now we could be entering a whole new legal realm, as pixelpusher220 writes in about one New Jersey court’s ruling that a person sending texts to someone who is driving may also be liable. Witness a truly new level of insanity, stemming from a case in which two victims of a texting driver sued not only the driver, but the girl sending the driver texts as well.
On Tuesday, a state Appeals Court ruled that the girl in that particular case could not be held liable. But it also ruled “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.”
Sort of leaves you breathless, doesn’t it? Probably because it’s monumentally stupid. The reason people accept attempts to make texting while driving illegal, even if the reason is misguided, at least makes some sense. Someone texting while driving can be dangerous to those around them. The act inherently means that the driver is distracted while driving. There’s really no way around that. The act, in and of itself, introduces at least some measure of danger to the situation.
Sending texts to someone who is driving, on the other hand, carries none of those inherent risks. Even if I know a friend of mine is en route in the car, why wouldn’t I assume that any text I send him or her wouldn’t be read once he or she has stopped driving? In the instances where that is exactly what happens, no danger has been introduced. At all. Making that act potentially liable is at once stupid and incredibly pernicious when it comes to the concept of justice. It shifts the liability for the stupid and/or illegal actions of the driver to a secondary party. It’s just wrong. And it sounds like New Jersey citizens largely agree.
But the majority of those CBS 2 interviewed found the ruling unfair.
“At the end of the day, you’re basically asking somebody else to be responsible for your own behavior,” said Lauren Burns of Verona. “And you can’t control somebody else’s behavior. You can only control your own behavior.”
When the general public shows more common sense than the judiciary, we have a serious problem.
Filed Under: liability, new jersey, texting while driving
Comments on “Court Says You Can Be Liable For Merely Sending A Text Message To Someone Who's Driving”
?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.?
The way I read this – If I send a text to you while you are driving and in your reply “Ima just driving to … ” – then I know that you are reading your texts whilst on the road. It would be irresponsible for me to carry on a text conversation with you in those circumstances and yes, I should be liable. All too often I see people in cars with their phone in hand texting backwards and forwards – yes it is ultimately the drivers responsibility, but the person texting that driver should surely be punished if they know they are encouraging the dangerous behaviour!
Re: Re:
I disagree. The legal responsibility should be 100% the driver’s, on principle. It’s the driver in control, not the texter. It’s the driver who’s deciding to break the law, not the texter. What’s next? If I become aware that someone I’m texting is also driving, should I be required to report them to the police or suffer a legal penalty? If not, why not? The logic is identical.
Re: Re: Re:
Silly. The solution is obvious. State sponsored crystal balls to everyone so everybody will always know when the person is driving…
Re: Re: Re: Re:
There’s no need for State Sponsored Crystal Balls… we have the NSA. They’ll tell us if were being criminals. (Hint: We’re all criminals!)
Re: Re: Re:
i agree with your disagree…
for a BUNCH of reasons, which include: i used to (not so much anymore, but occasionally) get text message (and voice mail) that was delayed by hours to days (sometime as much as a week), for no fathomable reason (nsa delay ?)…
HOW is someone to be held liable for that kind of situation, EVEN IF you stipulated the illogic of it all ? ? ?
(as an aside, it is weird that my TABLET set up with google voice, gets my text message BEFORE they arrive on my phone; i’m not even sure how that is possible… the google voice on the tablet gets text messages a good 5-10-15 seconds before my phone jingles that i have a text message… weird but true…)
art guerrilla
aka ann archy
eof
Re: Re:
“It would be irresponsible for me to carry on a text conversation with you in those circumstances and yes, I should be liable.”
Bullshit. It’s the driver’s responsibility to be in control of their vehicle. If I’m texting someone, I don’t know if they’ve pulled over to reply, they’re using Siri to reply without using the screen and keypad, they’re stuck in traffic, stopped at a red light or stop sign to they’re replying when they’ve gone to fill up their tank halfway through. Nor does it matter – if it was that important to me to have an immediate reply I’d call them instead.
If the driver can’t exercise judgement to determine whether or not it’s safe to carry out a conversation, then they shouldn’t be driving. Texts are asynchronous messaging, and it’s my problem if some idiot endangers others because they can’t wait a few minutes to reply to a non-urgent message.
Re: Re:
Or, you know you could continue the message and the person receiving it could be responsible and wait till there’s a safe time to read and respond…
Re: Re:
Most smart phones allow you to read emails. If someone responds by email saying “I’m driving…” are you legally or ethically obligated to refrain from sending further emails?
If no, you need to specify exactly why a text message (which beeps when it arrives and is distracting to read) is somehow different than an email (which also beeps when it arrives and is also distracting to read).
If yes… well, then you’ve gone off the rails of reasonable thinking. Next stop, suing your Aunt Sally because she sent you the birthday card you were reading when you were sideswiped while pulling away from the mailbox at the end of your driveway.
Re: Re:
Re: Re:
OK thats it, stop the world I want off, this level of stupid proves we as a race are doomed (critical thinking is in short supply).
Following this to its logical conclusion
Okay, so if we follow this to its logical conclusion, the following could also be held liable:
a) calling someone you know is driving
b) Radio stations
c) Sign spinners attempting to attract the attention of drivers
d) TALKING to the person driving the car
I don’t see how, if we accept that texting can fit that category, that a passenger cannot. In either case, the driver has to make a conscious choice to be distracted based on input from the third-party. The passenger can say, “hey, look at that barn!” the driver looks and then crashes. Yet, we do not currently hold those passengers liable.
And the reason is because there is an intervening choice on the part of the driver?and to add liability to others reduces the driver’s liability. This would be a bad precedent to set, because once it becomes possible to reduce a driver’s liability in this manner, you can bet that lawyers for the drivers will pursue many, many other corollary avenues to reduce their clients’ liability, such as the examples I gave.
Re: Following this to its logical conclusion
I’ve seen arguments made for banning mobile phone usage by the driver even with a hands-free set based on the “distraction” argument – and I agree with you that if we start arguing against all distractions, radios and other passengers talking would arguably fall under distractions as well. Anything that requires the driver to take his attention off the road (kids in the back, even traffic reports).
Re: Re: Following this to its logical conclusion
There is a difference between a passenger talking to a driver, and the driver talking on the phone. The passenger can see what is happening, and they usually pace their conversation depending on what they can see, and feel — braking, turning etc. The other person on the phone cannot.
Re: Re: Re: Following this to its logical conclusion
AC, you are an idiot. There is no difference, because when you are talking to the driver while in the same car, you are still providing as distraction to that driver. There is a reason why there are DOT rules against talking to bus drivers when you are on an interstate bus, intercity bus or a mass transit bus.
Re: Re: Re:2 Following this to its logical conclusion
No, you are the idiot, largely for calling other people an idiot.
And AC is actually correct. A conversation with a passenger in a car is not the same, generally, as interacting with a device in a car. Indeed, conversation with a passenger in the front seats is encouraged because it prevents drowsiness.
As AC said, and studies have repeatedly shown, the passenger is typically aware of the road and so the conversation ebbs and flows with the driving. Furthermore, body language between the driver and passenger both reduces the stress of communicating (and no, you don’t have to actively look at someone to infer information from body language). Conversation can therefore be accepted, paused, resumed, stopped in passively.
Devices, however, can’t be used passively – even when using handsfree. You have to dial the number, or ensure that the voice recognition has recognised the instruction correctly; the act of conversing over a telephone is a more pressurised situation because their is an subconcious belief that being on a call requires you to talk or listen and to maintain that conversation to the end.
That’s not to say that conversations with passengers can’t be distracting, but then it’s up to the driver to control that situation in the same way that they have responsibility to not use a telephone or similar device.
In much the same way, listening to music (at a reasonable volume) can often be considered good when driving. Fucking around with a MP3 player or hunting the glovebox for CDs is bad.
Re: Re: Re:3 Following this to its logical conclusion
I’m pretty confused with your post. Let me see if I can summarize–if the driver interacts with something passively, its ok, but if the driver interacts with something actively (thus taking their eyes off the road) that is bad.
And therefore, if anything (like texting) can only be interacted with actively, it should induce liability?
If that is the argument, I’m sorry, but I think that’s way too convoluted. It seems to me, that in any of the examples you cite the onus is still on the driver to DECIDE how to process whatever distraction is interrupting their driving. The fact that some things can be passive or active, or only active, or only passive is irrelevant to liability. DH said it above–it is the driver’s specific action/decision that introduces the risk into the behavior, not the presentation (regardless of source) of a distraction.
Re: Re: Re: Following this to its logical conclusion
But you’ve missed the point–the issue isn’t “texting”, the issue is whether you present a distraction that takes the driver’s attention away from the road. All of the examples I gave, COULD do that, but it all depends on the driver’s response to my potential distraction.
Which brings me back to, why o why shouldn’t the liability fall entirely on the driver who can choose to engage or ignore the distraction?
Re: Re: Re: Following this to its logical conclusion
yes, there is a difference — the difference is that having a passenger in the car with you is more dangerous than using your phone while driving. So are a lot of other common activities, such as eating while you’re driving.
At least, that’s what the statistics show.
Re: Following this to its logical conclusion
You missed one:
e) writing a letter to someone who can drive
After all, as with a text, if they decide to read your correspondence while driving it could cause a crash
Re: Re: Following this to its logical conclusion
Why not also include any place with a drive through window?
Between looking at the receipt, checking their purchase, or consuming what they purchased, the restaurant knowingly gave a driver something distracting. They even saw the driver in the car, how could they not know?
Question!
How do you KNOW that they’re driving when you send the text message?
Re: Question!
Well, from what I’ve read so far, that’s the only reason that judge thought you might be liable, is if you know the person is driving and have a reasonable expectation that the person will check the message while they are driving.
The only way third-party liability in this case could make ANY sense is if the third-party is both knowledgeable of the risk (not just that it “could” be distracting, but that it “will” be distracting to that particular individual) and willfully ignores that risk. Meaning, they must know the specific driver and have seen that they text and drive on a regular basis.
Re: Re: Question!
Re: Question!
well because you’re driving next to them obviously! 😉
Re: Question!
There’s ways, but they’d have to be proven. Off the top of my head, either previous messages would indicate they’re driving, they have a predictable routine or a prior arrangement that makes you aware they’re likely to be on the road, or you’re known to have literally just seen them drive past you.
Why you should be held responsible for someone else’s actions is another question entirely.
You’d be hard pressed to prove that someone knew or had special reason to know that a text you send to a particular somebody was likely to be read by that person while they were driving.
On the other hand, I bet at least one person out there knows an idiot who cannot leave their phones alone and have to view every text received as soon as humanly possible even while driving. So if you know they’re that kind of special idiot, and know that they’re driving when you send a text, you would have some responsibility.
But, if you know an idiot like that, you should already have reported them and they should already have had their licence to drive permanently revoked, so it’s all good.
“When the general public shows more common sense than the judiciary, we have a serious problem.”
I read that as, we have a serious problem because the public always seems to have more common sense that the judiciary.
Re: Re:
I had a “Stop the world, I want to get off.” moment while reading the story. Anyone else want to go form a new country somewhere and not let any of the crazy people in?
Re: Re: Re:
Can it be someplace not hot and humid?
I would be incredibly hard to prove this in civil court. It would be hard to prove that the person knew.
Can’t wait for someone to be brought up on felony murder charges for knowingly texting a driver who gets in an felony-scale accident with a murder involved.
Re: Re:
incredibly hard to prove this in civil court. It would be hard to prove that the person knew
It would be hard in criminal court. In civil court, you only have to prove it is more likely than not that the person sending the texts knew. Receipt of a text that says “im driving” or knowing someone’s work schedule could easily make it above a civil bar.
Re: Re: Re:
Maybe. I have, and will continue to, texted people who I knew were driving at the time, with the expectation that they will read it when they’re in a position to safely do so. What they are doing at the moment I send the text is irrelevant. Texts don’t inherently demand immediate attention.
I see nothing wrong with that practice.
Re: Re:
So, what happens if you send a text to someone who isn’t currently driving and they wait until six hours later, while they are driving, to open message. Are you also liable? LOLS
Re: Re:
Compounding that problem is that text messages don’t always go through in near real-time. The (very large) building I work in has spots that have horrible reception. If someone sends me a message, sometimes I don’t get it for a few minutes – plenty of time for me to walk out to my car and start driving.
Re: Re: Re:
This, too. To bolster the point, I’ve had some rare instances where texts have taken a couple of days to get delivered.
Reading way to much into this
The court is being thorough. People are taking one piece and claiming that sending text messages has suddenly become a huge liability. It has not. Read the actual ruling:
“Having considered the competing arguments of the parties, we also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving.”
So even if you know they’re driving, you are not liable. The only way they would infer liability is if you had some kind of special relationship with the driver and knew he would be distracted by trying to read and respond to the text immediately. That’s a pretty high bar to reach.
Re: Reading way to much into this
The trouble I see with this ruling is that it requires the mind police to determine intent and prior knowledge. The abuse I see coming is that it will be added to the lawyers grab bag and added in every possible case to “see what sticks”. It will just add to the cost of a case (billing hours for lawyers) and require third parties to prove the negative (how does a person prove they didn’t know something)? Many times I will ask a person to text me some information for me to use later, just because I’m driving (or will be soon) and I can’t write it down. Now that person may be held liable!!! It just doesn’t make sense.
Re: Re: Reading way to much into this
What do the police have to do with this? This was part of a civil lawsuit.
Re: Re: Re: Reading way to much into this
A precident is a precident. Once you’ve got a legal theory establishing this kind of liability in a civil court, it’s just a small step to applying it in a criminal context.
In English Common law, the slippery slope isn’t just a common rhetorical fallacy. It’s the way the system works.
That’s why you have to resist nonsense as soon as it starts.
Otherwise before you know it the NSA is able to trace your movements for the last 5 years.
Re: Re: Re:2 Reading way to much into this
Maybe if you could spell precedent I’d take you more seriously.
Why not make the phone manufacturers liable. After all if phones were incapable of texting, there would be no problem.
Do you even know what "liable" means, Timmy?
You wrote: “New Jersey court’s ruling that a person sending texts to someone who is driving may also be liable.“
But that’s NOT TRUE:
COULD NOT BE HELD LIABLE, Timmy. COULD NOT. NOT is the key word.
As for the “duty”, sure, that’s common sense: don’t knowingly cause people to be any stupider than they are. But it’s just commentary: there’s NO liability stated.
Your title is at best misleading. But it’s close enough for Techdirt. — Heck, without you baboons and your wacky errors and notions, I wouldn’t have any entertainment.
Re: Do you even know what
Dear God, pay attention man!
THIS GIRL can’t be held liable, but then the judge laid down guidelines to show that in some cases texting a driver CAN MAKE YOU LIABLE. just read a paragraph or two of the article next time, really.
Re: Do you even know what "liable" means, Timmy?
“COULD NOT BE HELD LIABLE, Timmy. COULD NOT. NOT is the key word.”
No it it’s you dribbling moron. The key words are IN THAT PARTICULAR CASE. That is, while the girl IN THAT PARTICULAR CASE could not be held liable, the possibility remains that someone could be found liable in the future (you know, as the very next sentence implies).
Are you so ridiculously obsessed that you can’t even parse an entire sentence?
Re: Do you even know what "liable" means, Timmy?
This is the funniest post OOTB has ever made. The entire point of the court’s ruling that, despite not doing so in THIS PARTICULAR case, the court could hold texters texting drivers liable under certain conditions went whooshing so far above OOTB’s head that he couldn’t crane his neck upward to see it fly past.
Way to go, moron. The reason few people bother responding to your idiocy is the idiocy itself serves the purpose of proving you idiotic. Bravo, dumbass….
Why stop there? Why not make people criminally liable for just talking to the driver inside the car?
Oh, and YET AGAIN, you kids go yapping off on false trail!
A Typical Techdirt Title Twerk, in which the writer puts an entirely wrong conclusion into the title, then without reading and making their own conclusion, the pack of ankle-biters just blindly start yapping their heads off.
Happens so often that I neglect to point it out.
Techdirt’s motto: The confusion has become so complete that it’s beyond correction.
Re: Oh, and YET AGAIN, you kids go yapping off on false trail!
Obviously you should not bother to point out these “errors” because you just didn’t read and comprehend the Techdirt article or bother to click through and read the original. The title and the article correctly interpret the original article and the ruling as stated. The girl was not liable, but under other circumstance someone COULD be held liable. The big question is how will the next lawyer stretch that ruling to expand the liability some more.
Re: Oh, and YET AGAIN, you kids go yapping off on false trail!
You’re projecting again, Blue.
Re: Oh, and YET AGAIN, you kids go yapping off on false trail!
crickets
Secondary liability
OK, we’re off to good start.
Serving alcohol makes you liable for the actions of the consumer.
Texting makes you liable for the actions of the recipient.
If I say jump off a cliff to someone and they do, am I now liable for murder?
If I manufacture a car and the driver gets into an accident and kills someone, am I liable for murder?
If I give someone with a peanut allergy a peanut butter sandwich and they die, did I murder them?
If I flip someone a bird and a third party sees my action and thinks I did it to them and they get upset at me, am I now liable for their actions of outrage?
If I put up a sign on the road with too much text and someone reads it and gets into an accident, am I liable for the resulting accident?
If I create a service like Drop box and people start sharing MP3s, am I liable for infringing?
Finally, shouldn’t the phone manufacturer, cellular carrier and the manufacturer of the communications equipment be also liable? After all, the only reason for building such an infrastructure is for people to text each other while moving. If this weren’t the case, what is the purpose of having wireless communications? The phone manufacturer is liable for creating a device that will distract a person while moving. The phone needs to stop working while in motion. There is a GPS in the phone, it can easily detect when the phone is moving more than 0 MPH. The phone should simply shut down. Anyone building a phone that violates this principle is now liable for all deaths due to a person using the device. This goes for all devices: TVs, radios, phones, games, watches, ebooks, etc.. In fact, books should have a Velcro strap with warning text stating that reading this book can cause accidents while driving and you should not read in a moving vehicle and never read aloud so as to distract the driver of any moving machine.
Re: Secondary liability
“If I say jump off a cliff to someone and they do, am I now liable for murder?
If I manufacture a car and the driver gets into an accident and kills someone, am I liable for murder?
If I give someone with a peanut allergy a peanut butter sandwich and they die, did I murder them?
If I flip someone a bird and a third party sees my action and thinks I did it to them and they get upset at me, am I now liable for their actions of outrage?
If I put up a sign on the road with too much text and someone reads it and gets into an accident, am I liable for the resulting accident?
If I create a service like Drop box and people start sharing MP3s, am I liable for infringing?”
Under the right circumstances – yes to all of the above!
Re: Re: Secondary liability
Agreed.
My thoughts when speaking to a passenger in the vehicle is the same when speaking on the phone. I do agree that hands free can help, but getting down to it, it’s the responsibility of the driver. It is distracted driving when you are testing. http://www.kpbs.org/news/2012/apr/24/distracted-driving-worse-among-college-students/
Not my fault
Your Honor, my friend Bob sent me the txt that set off the chain of events.
Bob sends txt, my phone beeps, I reach for my phone, trying to hold it and my burger I drop the burger on the floor, I read Bob’s message, reply to him, put my phone down and smash into officer DeLino’s cruiser.
If Bob had never txt me about the high speed chase going on I would have never tried to see it in person but it was awesome looking out my rear view window as the suspect was coming down the street! Should have recorded it rather than putting my phone down, might have been viral, but I knew there were lots of cops around and did not want to get busted for using my phone while driving!
Bob owes me a burger and new car, I want my money now.
Say what your Honor?
Personal responsibility? What’s that mean?
The Court clearly has no idea how SMS works
Among the things that the Court clearly does not know is that SMS is best-effort, with no guarantee of delivery or time of delivery. SMS facilities frequently delay messages, particularly when they’re congested. Thus someone who sends a message at 6:00 PM saying “I know you’re leaving soon, drive safely” has no way to control its delivery time or to know that it was actually delivered at 6:45 PM, twenty minutes after the recipient began driving.
This ruling might just save my relationship
I love this ruling. Now when I don’t want the 50 million texts from my girlfriend so she can tell me all the various minutia of her day, I can tell her, “Babe, I’m driving, so you can’t text me for a while. I mean I totally want to hear about what happened to you and your friend when you had some crazy waiter when you went to lunch, or how that stupid sales woman gave you a hard time when you went to try on that dress, or how creepy the guy was when you went to get your oil changed, or why your sister made you so mad this time, or why the people at work just don’t seem to respect your ideas, because if they just listened to 1/10th of the things you had to say, that place would have so much business they wouldn’t know what to do, but I don’t want you to go to jail. I love you too much to risk any chance that we might be apart. I’ll give you a shout when I’m out of the car. You should hear from me in 4-6 hours. Love ya.”
End the end, it’s the Drivers responsibility not to pick up and reply.
Where?
So WHERE EXACTLY is the LAW that the LEGISLATIVE branch crafted and approved and was signed into LAW by the EXECUTIVE branch is that clause?
Last I checked in both Federal and State Constitutions, JUDICIARY branches don’t MAKE LAWS.
Too much power, not enough brains… pretty much sums up the entire government.
Re: Where?
It’s New Jersey. Need I say more?
There was a more rational debate that occured on app.net on this topic: https://alpha.app.net/the_gadgeteur/post/9966324
where the fuck do these people come from? how the hell is anyone supposed to know that receiver A is going to be driving or not when sender A sends a txt? these are supposed to be some of the more intelligent people. that’s why they hold these high positions. it sure seems as if common sense is lacking somewhat, or maybe that isn’t a requirement to be an appeal judge (or any judge at all?)?
Marc Randazza speaks on the issue
Marc Randazza has written an article on the issue. Of course, Marc is generally seen favorably here on Techdirt, so maybe people will listen when he says this isn’t the horrible ruling everything seems to think it is.
How do I know if the receiver is driving?
You should never text me, because I always wait until I’m driving to read my texts.
[Law enforcement take note: /sarcasm]
I think the government forgets that not everyone knows where everybody is at all times.
Dumb judges
Ah the USA courts… I laugh at your continued attempts to blame anyone else for the stupidity of an individual.
How can they be serious? Next they will blame a manufacturer of motor-homes if people walk away from the wheel when engaging cruise control. Oh wait – they did that already! Dumb arses. Next they will ban hot water taps from delivering hot water for fear of scalding. And what about stoves? Nasty burning things – ought to be banned.
Stupid people – why not just tell them how f–ing stupid they are and send them on their way?