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.When the general public shows more common sense than the judiciary, we have a serious problem.
“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.”
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Filed Under: liability, new jersey, texting while driving
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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!
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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
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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.
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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.
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Bullshit, if some one replies with that message I'm going to assume that they pulled over to reply.
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Following this to its logical conclusion
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.
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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.
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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.
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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?
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At least, that's what the statistics show.
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Re: Following this to its logical conclusion
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
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Re: Re: Following this to its logical conclusion
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?
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Question!
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Re: Question!
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.
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> sense is if the third-party is both knowledgeable of the risk...
I can't figure out how we've ended up calling this third-party liability. Who are the three parties here? The driver, the texter, and...?
Seems to me this is second-party liability at best.
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Why you should be held responsible for someone else's actions is another question entirely.
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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.
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I read that as, we have a serious problem because the public always seems to have more common sense that the judiciary.
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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.
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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.
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I see nothing wrong with that practice.
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> charges for knowingly texting a driver who gets in an felony-scale
> accident with a murder involved.
If the person you're texting is already committing a murder while driving, then your text really is completely irrelevant at that point.
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Reading way to much into this
"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.
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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.
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Do you even know what "liable" means, Timmy?
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.
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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.
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Re: Do you even know what "liable" means, Timmy?
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?
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Re: Do you even know what "liable" means, Timmy?
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....
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Oh, and YET AGAIN, you kids go yapping off on false trail!
Happens so often that I neglect to point it out.
Techdirt's motto: The confusion has become so complete that it's beyond correction.
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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.
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Secondary liability
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.
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Re: Secondary liability
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!
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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/
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Not my fault
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?
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The Court clearly has no idea how SMS works
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This ruling might just save my relationship
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Where?
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.
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Re: Where?
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Marc Randazza speaks on the issue
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[Law enforcement take note: /sarcasm]
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Dumb judges
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?
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