Liability for sending a text to a person that is driving?

Driving while talking on a cell phone is a source of liability that is significantly growing.  Case in point, a jury in Texas rendered a $24 million dollar verdict last week for Vanice Chatman-Wilson.  Ms. Chatman-Wilson was seriously injured by a Coca-Cola truck driver that was talking on a cell phone at the time of the collision.  Various news reports here, here and here.

Verdicts for damages resulting from texting while driving mirror the cell phone while driving cases.  In 2010, another Texas jury rendered a $22 million dollar verdict for the family of a Baylor college student killed by a texting driver. 

Those verdicts do not surprise me one bit.  Juries hate distracted drivers.  It doesn’t take a master of Don Keenan’s Reptile to convince a jury in these cases “that could have been me” or “that could have been my child.”

A new area of potential liability that I quite frankly had not considered is liability for the individual that sends the text to the distracted driver involved in the wreck.  Insurance Journal  reports this week that a New Jersey Judge is expected to issue a ruling soon in just such a case.  

At first glance, I shrugged off the theory as creative lawyering.  What if they didn’t know the person was driving?  They didn’t force the person to read the text while driving.  How is it any different from the driver having a magazine and choosing to read it or not while driving?

However, the more I thought about it, the more I considered that there may be some liability in limited situations.  What about an off duty employee that responds to work related email or text messages or a person sending texts back and forth to a driver knowing that the driver is driving?  These cases will be very fact specific.  Regardless of how the New Jersey court rules, you can expect to see the issue litigated across the country and to have broad implications for drivers and their employers.

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