Today’s Verdict: Distracted Driving


by David P. Lesch, Esq.


Few things could be more dangerous to the community than texting while you are operating a motor vehicle.  If you haven’t figured this out by now, no need to read further.  

According to Public Health Law research, up to 28 percent of traffic collision risks are caused by cellphone-related distracted driving.  New York legislators have proposed an even more aggressive way to crack down on those who text behind the wheel.  Instead of a “breathalyzer”, think of a “textalyzer”.  

During the recently ended legislative session, a textalyzer bill was before a committee in the New York State Senate.  The bill proposes that drivers who have been involved in an accident be compelled to turn over their phone immediately after a wreck or risk a driver’s license suspension.  

Is this a sign of how far we as a society are willing to go to prevent a needless–and potentially fatal– accident? But can we go (or should we go) even further and hold others responsible by expanding liability in distracted driving accidents?   

Recently an Appeals Court in New Jersey suggested that if you text a driver, you will be responsible for an accident that ensues.  The New Jersey case involved a couple who were riding a motorcycle when they were sideswiped by a Chevy pickup truck after it crossed a double yellow line.  Both husband and wife became amputees.  The 18 year old driver of the truck admitted to texting immediately before the accident.  Although the driver’s insurance company settled with the couple, the plaintiff’s also sued the person who sent the pickup driver the one text message that he received before the accident.

The New Jersey Appeals Court correctly decided that there was no proof that the person who sent the text knew the driver was driving when she texted him and dismissed the case.  However, the Court seemed to suggest that liability could be imposed on someone who isn’t even in the car if the texter was in the position to know–at the time he or she sent the text–that the person receiving it was behind the wheel AND would open the message to read it.  

It’s not the first time in our legal history as a nation that we’ve attempted to hold third-parties responsible for the actions of another.  If a bartender knowingly gives alcohol to an intoxicated patron and that patron then drives a vehicle under the influence resulting in the injury of another, the bartender and establishment can be held liable for any injuries that resulted from the automobile accident.  

Think about it this way, if a passenger in a vehicle puts his or her hands over the driver’s eyes and the driver has an accident; isn’t the passenger responsible?  Of course.  Is this different from sending a text to that same driver you know is on a roadway?  

In my experience as a litigator I usually find that every civil negligence case comes down to foreseeability of harm.  It’s the ability to look into the future and know that your actions, if taken, will hurt another.  

If you knowingly send a text to a person for whom you have a reasonable expectation will open the text: you have foreseen the possibility of an accident.  You should be held responsible.  And you should make sure you are ready to spend time in jail and/or be subject to civil liability.  


Todays Verdict_David LeschDavid P. Lesch is an attorney and host of ‘Today’s Verdict with David Lesch‘ on Bronxnet. Today”s Verdict airs Tuesday nights at 6:30pm, Cablevision channel 67, Fios channel 33. On Facebook and Twitter @DavidLesch.

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