How Texting a Driver Could Make You Liable for a Crash – Or Not?

By Dean I. Weitzman, Esq. on May 6th, 2016

A driver is operating a motor vehicle and gets into a crash with another car just after receiving a text from an acquaintance on their mobile phone. In that case, can the driver sue the person who sent the text, blaming them for causing them to become distracted and crash?

That’s the issue in a recent lawsuit in Lawrence County in Pennsylvania, where a judge has allowed legal claims of negligence and wrongful death to proceed as the court system dives into the legal quagmire of technology devices and potential liability.

The case, Gallatin v. Gargiulo, came before Lawrence County Court of Common Pleas Judge John W. Hodge in March, and involves claims against two men who were texting a female driver who was involved in a fatal accident, according to an April 29 story in The Legal intelligencer. “The opinion follows a 2013 ruling from a New Jersey appeals court that established for the first time in the country a cause of action against those who knowingly distract drivers by sending text messages,” the story reported.

In the case, defendant Laura E. Gargiulo was allegedly texting someone on her smartphone when she drove her vehicle into a motorcyclist who had been traveling in front of her on a roadway, the story reported. The motorcyclist, Daniel E. Gallatin, later died from his injuries. “Distracted and inattentive, she struck the rear of Gallatin’s motorcycle, pinning him and dragging him under her vehicle for approximately 100 feet,” the report continued. Gargiulo’s texting was allegedly done in violation of Section 3316 of the commonwealth’s Vehicle Code.

One of Gallatin’s survivors, Mary Lou Gallatin, filed a six-count complaint against the driver as an individual and as executrix of Daniel Gallatin’s estate, the story reported. The lawsuit alleged negligence, wrongful-death and survival claims, and included Joseph M. Gargiulo and Timothy J. Fend as defendants because they were allegedly sending the driver text messages at the time of the crash, according to the story.

In Judge Hodge’s ruling to allow the claims to move forward, he “noted that an individual must know or have reason to know at the time of the accident that the person they are texting is driving and will view the text, establishing a high standard,” the story reported.

One of the defendants, Fend, “filed preliminary objections based upon Pennsylvania Rule of Civil Procedure 1028(a)(4), asserting that the claims were insufficient as a matter of law,” according to the judge. “Fend argued that there is no statute or case law imposing a duty of liability on a person who merely sends a text message to a person operating a vehicle.”

Certainly, this case is still in process and there are many legal issues to be decided, but it already introduces some fascinating arguments.

My first reaction is that the legal issues here are akin to a bartender who knows that someone is driving home from a bar after drinking and yet continues to serve that driver alcoholic drinks well past the point that the customer can safely drive home.

In that instance, there is clearly a volume of law on that subject that finds legal liability in a dram shop action against the bar and bartender. In such a case, there can be legal liability when a bartender continues to serve someone who is visibly drunk. That’s a clear example for finding liability against someone who enables a danger to our society.

In the texting case, though, things are different. Personally, I think that many courts would not find liability in this texting situation because it is a very different set of circumstances.

In the case before the courts in Lawrence County, the judge didn’t say he accepts the plaintiff’s arguments on their face, but he ruled to allow more discussions and reviews to continue. He didn’t actually decide that the persons who sent the texts are responsible. At that point, you really have a nominal bar to cross for evidence to be shown.

Under these conditions, and based on what I read and hear about this case today, I don’t think that allowing people to sue someone who texts them if they are involved in a vehicle crash is going to become a standard in the U.S.

One problem is that a driver’s motor vehicle insurance only covers them in the event of a vehicle crash while actually driving. So a plaintiff could not seek damages from a driver’s vehicle insurance in the event they received a distracting text from another person because it is not an actual crash event. In that case, it is likely that the only insurance that could potentially provide some kind of liability coverage is homeowner’s insurance, which would offer lower coverages for plaintiffs to pursue, perhaps making legal challenges not worth the damages that could be collected.

At the same time, if cases begin showing up involving texting while driving claims against homeowner’s policies, you can bet that insurance companies will be quickly making changes and writing specific clauses to block such coverages. Mark my words on that one. That’s how quickly insurance companies close those kinds of loopholes.

Of course, there might be some circumstances where texting while driving claims could be pursued and envisioned. What if a driver is being viciously texted by someone who knows they are driving – should they have some kind of responsibility if they cause a driver to become upset and that leads to a crash? What if the driver texts back to say they are driving and can’t text, and the texting party continues their texting attack unmercifully? Or what if you are an employee and your employer texts you about locations where you need to go to make sales, which is taking your eyes off the road? In that case, maybe there could be liability.

All the possible scenarios raise many questions.

In the big scheme of things, no matter how these legal issues are resolved, it is not absurd, and it is in fact good, that the courts are thinking about and evaluating these kinds of issues. As we continue to become a more digital society, I think that there are going to be more opportunities to mete out liability in new ways that we have not seen before.

That’s how other legal issues have been sorted out over time.

We’ve come to the point where driving drunk is not something we accept any longer. In decades past, the police would stop a drunk driver and then take them home to sleep it off. Now there are serious consequences for driving drunk, including large fines, license suspensions and jail time. No one is just getting a ride home anymore.

It will be interesting to watch as the courts evaluate and rule upon the acceptable standards that we as a society need to abide by when it comes to texting and driving as our digital society continues to evolve.

These kinds of tragic legal cases occur every day when innocent victims are severely hurt or killed in vehicle crashes through no fault of their own due to the actions, inattentiveness or indifference of others. That’s why it is critical to have a legal team on your side that uncovers every fact to bolster your case and maximize your damage award.

We here at MyPhillyLawyer stand ready to assist you with your legal case if you or a loved one is ever seriously injured in a vehicle incident or accident anywhere in the United States. We represent the families of victims who die in such tragedies as well, to ensure that their families receive every penny of damages that they are eligible to receive.

Call MyPhillyLawyer at 215-227-2727 or toll-free at 1-(866) 352-4572 anytime and our experienced, compassionate, aggressive team of attorneys and support staff will be there for you and your family every step of the way as we manage your case through the legal system.

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