Could you be blamed for a car crash because you sent a text message?
A New Jersey judge will decide later this week if the sender of a text message might be partially liable for a horrific auto accident that occurred because the driver was reading that message on his cell phone and drifted into oncoming traffic.
With nearly half a million U.S. drivers injured in distracted driving-related accidents every year, according to the National Highway Traffic Safety Administration, the judge’s decision could have wide-ranging impact in both the legal and digital realms.
While it might seem absurd to blame someone who isn't even in the car -- or anywhere near it -- for causing an accident, some legal experts say the plaintiff is on firmer ground than you might think.
Skippy Weinstein, a Morristown-based lawyer, is using similar logic to press the case he filed on behalf of David and Linda Kuber. Both Kubers lost their legs during a 2009 crash in Mine Hill, N.J., after 19-year-old Kyle Best sideswiped their car when driving while texting. Weinstein said Shannon Colonna, who was texting with Best, should also be held responsible for the Kubers’ injuries.
"She was not physically in the vehicle but she was electronically present," Weinstein told msnbc.com. "She and he were assisting each other in a violation of the law."
That word "assisting" is at the crux of Weinstein's novel legal argument.
Most readers will be familiar with the notion of "aiding and abetting" a criminal act and the guilt it brings: the man who knowingly holds the door for the gang is just likely to be convicted of bank robbery as the safe cracker.
More recently, this notion of aiding and abetting has been extended to civil liability cases, too, creating a basis for what's sometimes called "secondary" or "vicarious" liability. For the past two decades, most civil aiding and abetting cases have been limited to investment and securities fraud: An aggrieved investor might not only sue Bernie Madoff for stealing his money, for example, but also go after a third-party broker who repeatedly executed trades for Madoff. Even if the trader wasn't profiting from the scheme or part of a "joint enterprise,“ a court might find the trader provided assistance to Madoff, and should have known that someone was likely be injured by his actions.
The aiding and abetting argument in injuries that give rise to lawsuits, known as "torts," is only beginning to find its way into other kinds of civil cases.
There's a simple three-pronged test to prove someone is partly to blame for causing an injury by aiding and abetting someone else. It is set out in the Restatement of Torts published by the American Law Institute, which guides most civil courtrooms:
1) The party the defendant assists must do a wrongful act;
2) The party must be generally aware of his or her role in the illegal or "tortuous" act;
3) The party must "substantially assist" in the principal violation.
Weinstein think his argument is easy to make. The driver violated the law by texting while driving. Colonna, the text sender, should have known that Best was driving home from work and had to know texting while driving was a violation, he said. Therefore, it's hard to argue that a text sender isn't substantially assisting in the creation of a text message conversation that violates New Jersey's driving laws.
"That very comfortably satisfies the third prong of the legal test," he said.
Colonna’s lawyer, Joseph McGlone, doesn't think the argument has any merit, and has asked Morris County Superior Court Judge David Rand to dismiss the case. Rand is scheduled to rule this week on McGlone’s motion to dismiss the case.
The sender of a text message has no way to control or predict when the recipient will read it, McGlone argues.
"The sender of the text has the right to assume the recipient will read it at a safe time,” McGlone told the local Daily Record newspaper. “It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message."
He added that there is no precedent for heaping liability on a person on the other side of a text message conversation that causes injury.