Can someone be sued for sending a text to a driver who causes an accident in Virginia? By Josh Silverman on August 30, 2013

While the idea that the sender of a text to a Virginia driver could be found liable seems extreme, the New Jersey court lays out a pretty compelling argument that under limited circumstances the sender of a text could be held liable.  Let's start with the facts.  An off-duty volunteer firefighter was driving his truck and exchanging texts at a rate of 14 texts per hour with a friend.  Immediately after receiving another text he loses control of his truck and strikes a couple on a motorcycle.  They both suffer tragic injuries including leg amputations.  The firefighter renders first aid and calls 911.

In many cases with devastating injuries, the driver has insufficient insurance or personal assets to cover the victim's medical bills and injuries.  It is the lawyer's job to explore all viable options to compensate the client.  In this case the victims settled with the firefighter for presumably insufficient compensation.  Upon learning that the driver was exchanging texts with a close friend which appeared to cause the accident, the victims sued the "remote texter."  The trial court dismissed the case and it was appealed.  On appeal the New Jersey appellate court affirmed (agreed) with the trial court that there was no liability in that case for the "remote texter."  So why all the headlines?  The Court however explained that in some circumstances the "remote texter" could be found liable.  Here is what the Court held:

"We conclude 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." Click here to read the full decision.  In that case, the Court found that the evidence was insufficient to show that the remote texter knew the driver would read the text while driving.

Here is why I think the Court got it right and Virginia should follow suit.  Let's start with some indisputable facts: texting while driving is illegal in Virginia, it is distracting, and it greatly increases the risk of causing an automobile accident.  However, so are other distractions.  Hypothetically if a passenger starts engaging in horseplay with the driver which causes an accident, no one would have a problem suing the passenger.  Similarly, let's say a passenger receives a text with a picture of their friends and hands the phone to the driver to look at while driving and the distracted driver causes an accident while looking at the picture text.  Who would have a problem saying the passenger shares some blame?  In both cases the passenger knowing distracted the driver putting himself and everyone on the road in danger. 

You can argue the driver was primarily responsible in all of the examples and you would be correct.  However, under Virginia law there can be more than one cause of an injury or accident and every person who negligently contributes to the injury and accident is liable.  So the fact that the driver certainly has primary responsibility does not mean others can not be held legally liable for the personal injuries.

Back to texting while driving, the key point from the New Jersey case is the remote texter must have reason to know the driver would read the text while driving.  So if you send a text to a friend who just happens to be driving you have no legal liability.  However, if you send a text to a friend and your friend responds that he is driving to work, to a restaurant, home, etc., and you continue the conversation via text with your friend, then you are knowingly distracting the driver.  Yes the driver doesn't have to read the text while driving, but the sender knows he will read the text because he just read and sent a text while driving.

The opposing argument is basically a slippery slope argument.  There are many distractions out there.  Billboards, pan handlers, teenagers holding signs for car washes, etc.  Are we going to hold all of them responsible for car accidents?  There is a difference between those distractions and texting while driving.  The former is perfectly legal and the latter is a crime.

It will be interesting to see how Virginia courts will handle this issue when it arrives here.  It will certainly be coming to a Court near you in the future.

In the meantime, everyone please have a safe holiday weekend and please do not text while driving!


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Josh Silverman

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At the Silverman Law Firm LC in Richmond, VA, attorney Josh Silverman and his team represent victims of personal injuries and medical malpractice. Josh Silverman has been recognized as a "Virginia Super Lawyer" every year since 2013 and was selected as a 2015 Top Rated Lawyer in Healthcare Law based on his AV Peer Review Rating in Martindale-Hubbell©.

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