972-731-6500DON’T BE THE ONE WHO SENDS THE WRONG MESSAGE
By now, we should all be sensitive to the evolving groundswell of law which could affect those of us (I’m among the guilty) who text and drive. As lawyers, we are waiting to see where all of the various state legislatures end up drawing the lines and how severe the penalties they will ascribe? Although not illegal in every jurisdiction yet, we know that while we are operating a motor vehicle, we ought not be reading or sending texts. The National Safety Council informs us that texting while driving (“TWD”) causes 1,600,000 accidents per year and that number will likely only continue to swell. Given the volume of accidents caused by TWD, it should come as no surprise that 330,000 people are injured each year and that 11 teens die every day in TWD accidents. Additionally, the National Highway Transportation and Safety Administration reports that TWD makes us twenty-three times more susceptible to crashing. Insurance companies and various safety organizations have done a fairly good job of educating us all on the dangers of TWD. That is, much as the MADD battle cry of the 90’s became “Don’t Drink and Drive,” we have now added “Don’t Text and Drive” to the automobile safety lexicon.
But should the driver who TWD or who reads texts while driving be the only responsible party in the unfortunate event of an accident caused by the driver’s temporary inattention to the road? A recent case out of New Jersey could completely re-shape the jurisprudence on TWD. In Kubert v. Best, et al. and Shannon Colonna, the Superior Court of New Jersey – Appellate Division took up an issue of first impression; whether, as a matter of civil common law, one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.
On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came around a curve, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of traffic. David Kubert attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David’s left leg. It shattered Linda’s left leg, resulting in a compound fracture of her femur. Ultimately, both David and Linda each lost a leg as a result of the accident. The Kuberts’ attorney subsequently developed evidence which demonstrated that Kyle Best and his girlfriend, Shannon Colonna, had been texting each other all day long, including at the moment that the accident occurred. Although the Kuberts were able to prove that Best and Colonna were texting at the moment of the accident, it was not proven that Colonna knew that Best was driving while she was sending him texts that day. Without sufficient proof of Colonna’s knowledge of Best’s whereabouts at the time she was texting him, the Kuberts were not able to prevail in their novel legal theory against Colonna. However, the New Jersey court held 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. And with that, the sure-to-be controversial gauntlet has been thrown down and legislatures and courts from other states will likely soon follow with similarly reasoned laws and opinions. Will Texas follow?
Section 545.425 of the Texas Transportation Code provides that it is unlawful for:
- Bus drivers to operate cell phones (handheld or hands-free) while driving
- Novice drivers to operate cell phones (handheld or hands-free) while driving
- All drivers to use hand-held phones and to TWD in school zones
Texas is currently among the most conservative venues in the United States and is likely to lag the rest of the country in doing anything to strengthen the theories of negligence for injured Plaintiffs. And, frankly, I could understand a reluctance to broaden theories of liability in TWD cases. The anti-texting laws fall broadly into a category called “Distracted Driving” laws. But aren’t there many other elements on our Texas roadways that distract us from the road? What about giant billboards designed to seduce our eyes into reading and digesting the billboard’s message? Should advertisers then also be liable if a distracted driver causes an accident because he took his eyes off the road to read a billboard? What about a commercial hot air balloon outfitter? I have gawked at those multi-colored giant dirigibles on many occasions as they hovered overhead while I drove down the road. Surely the operator of those balloons knows their vibrant colors will catch the eye of anyone (including drivers) as they traverse the sky. Is there a difference in a driver’s culpability in an accident if he took his eyes off the road in favor of one distraction (say, a beeping cell phone) over another distraction (a billboard challenging us to consume a 64 ounce steak at a restaurant in Amarillo)?
TWD accidents are unnecessarily injuring and killing thousands of people a year. So I get it. Our human nature motivates us to do something quick and extreme to curb this alarming trend, especially in the name of political expediency. On the other hand, opponents of broader TWD laws argue that the fundamental issue is rather simple. They say whether or not your spouse or your friend knows you’re driving at the time they send you a text, you are not required to respond to them while you are behind the wheel. Furthermore, they argue that if you relent and succumb to the enticing ring/beep on your phone while you are driving, it is your conscious decision alone that recklessly diverts your eyes from the roadway.
In any event, TWD is a lightning rod legal issue right now and there will undoubtedly be other states which adopt the holding of the Kubert court. Accordingly, text senders across the country should proceed with caution. Don’t be the one who sends the wrong message.