(309) 788-2800 mcfe@mcfe-law.com

It has become common knowledge that if you text and drive, then an array of terrible things can happen. Not only can you get in accident, you could also be subject to a fine. Of course, if texting results in an accident, you will likely be liable for that accident because you were not paying attention to the road. But, what about the person on the other end of that text message? Can they also be liable? A court in New Jersey thinks so.

In September of 2009, a young man, Nick, was driving his truck home from working at the YMCA. A young woman, Shannon, texted him, as she had been doing all day. In replying to her text message, Nick crossed over the centerline in his truck. A couple on a motorcycle was in the oncoming lane. While Nick did not notice that he was veering into the other lane, the couple on the motorcycle definitely did. The couple swerved to get out of the way, but could not make it in time. The truck hit the couple and the motorcycle. The woman on the motorcycle shattered her leg, and the truck nearly severed the leg of the man. Both lost their left legs because of the accident.

The attorneys in that case made a creative argument. They thought that not only should Nick be liable for the accident, but Shannon should be liable as well. Their rationale was that if Shannon had not texted Nick, then Nick would not have responded. The law recognizes that more than one person can be liable for an accident, and if that is the case, then both parties should take responsibility for their contribution to the accident.

The court considered several arguments in this case. One of those was that Shannon was aiding Nick in being negligent (or careless) in driving his vehicle. However, that argument was not successful because Shannon has no control over when Nick will read his text messages. Unless the prosecution presented some evidence that proved Shannon wanted Nick to read and respond while he was driving, then Shannon did not aid in Nick’s negligence. The court concluded that the mere sending of an electronic message (including e-mail, Tweets, Facebook posts, etc.) would not make an individual liable for the negligence of the receiver.

However, the court instead found that Shannon had a special duty to refrain from texting someone that she had reason to believe would be driving and would likely read the message while he or she was driving. This rationale requires specialized knowledge about the person receiving the text. Her specialized knowledge creates a foreseeable harm, which may result in negligence. In this case, Shannon knew that Nick had just gotten off work and was on his way home; she also knew that he was likely to read the text on his way home. As such, Shannon has a special relationship with Nick that may create liability.

Like many states, New Jersey makes using your cell phone without a hands-free device illegal, which includes sending and receiving text messages. That rule has never before been expanded to anyone outside of the vehicle as it did in this case. Those rules seem to be changing and the New Jersey laws could gradually make their way to the Midwest. While the “specialized knowledge” rule that this court states would be difficult to implement, it emphasizes the policy notion that the public does not want distracted drivers on our roads.

New Jersey imposes a $100 fine on texters, much like Iowa (a $30 fine) and Illinois (a $75 fine). In fact, as of January 1, Illinois expanded the hands-free cell phone requirement to the entire state, not just the Chicago area. Under the new law, a violation is considered a moving offense, which means that if the police stop you three times in one year for using your cell phone while driving, then you will lose your license. The new Illinois law emphasizes the importance of reducing distractions while you drive. If you have questions about driving distractions, contact McCarthy, Callas & Feeney at 309-788-2800. We are happy to help with your legal needs.

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