Texting Ethics: The Lawyer’s Duty To Propose A Ridiculous Theory And The Judge’s Duty To Reject It

"You almost had me, Miss. Your plan was clever---you knew your boyfriend would answer that text message you sent, and timed your call so he would be driving on Dead Man's Curve. It was almost a perfect crime!"

“You almost had me, Miss. Your plan was clever—you knew your boyfriend would answer that text message you sent, and timed your call so he would be driving on Dead Man’s Curve. It was almost a perfect crime!”

Last year, a Superior Court judge in Morristown, New Jersey ruled that Shannon Colonna should not and could not be made to pay damages to David and Linda Kubert, who both lost a leg after her boyfriend, Kyle Best, driving his car, read Colonna’s text message and crashed into the motorcycle the Kuberts were riding.

The Kuberts are appealing the ruling, with their attorney, Stephen “Skippy” Weinstein, arguing before a three-judge panel that texters should have “a duty of care” imposed on them, making them potentially liable when they send a message knowing that the intended recipient is driving, as Best was. It’s a novel theory and a genuinely terrible one, an insidious concept that would allow plaintiffs to drag completely innocent parties into crushing personal injury litigation, and that over time would be certain to ooze into other areas. Good for lawyer Weinstein, though; he’s doing his job, which is zealous representation. The future mischief such a duty would wreak isn’t his concern, only getting the best result for his clients is.

The judges, however, who have an ethical obligation not to make reckless and irresponsible rulings, in short, to be competent, have a duty to throw Mr. Weinstein’s theory of liability down the deepest well they can find. The driver, and only the driver, has responsibility for maintaining control of his vehicle, and no matter what temptations are presented to him by others, as long as he has the choice and the ability to drive safely, the responsibility for any dangerous decisions remain his and his alone. Weinstein’s theory posits a text message sent to a driver by someone who knows or should know that he will read it while driving. With a little tweaking, this could even be a diabolical murder plot, fit for Columbo. What any message sender does know is that the driver has complete control over whether he or she answers a cell phone call or a text message while on the road, and that’s enough.

Even if the driver is foolish enough to routinely read and send text messages while driving, it is not the legal or ethical duty of others to police his driving habits when they aren’t even in the car. It doesn’t take a soothsayer to predict where such a novel legal obligation would lead, for the law is the wonderful terrain for slippery slopes. Some drivers are easily distracted—is a passenger who starts a conversation jointly liable for the accident that results when a driver’s attention is diverted by “How about those Bears?” Is a radio station that knows there are “Wayne’s World” lovers at the wheel liable for the crash that results from a car full of idiots singing and bopping along with Queen’s “Bohemian Rhapsody”? How about the passenger who asks, “How fast can this baby go?”

Whenever one of these creative liability theories gets before a judge or a jury, we hold our collective breath, because sometimes they prevail despite logic and fairness. Let’s hope this one does not, but don’t blame the attorney if it does. Blame the judges.

_________________________

Pointer: ABA Journal

Facts: Daily Record

Graphic: DVD Beaver

31 thoughts on “Texting Ethics: The Lawyer’s Duty To Propose A Ridiculous Theory And The Judge’s Duty To Reject It

  1. Jack, we have dram shop and social host liability when you get the driver drunk. How is it a bartender’s fault if the customer decides to drive while intoxicated? What if a passenger in the front seat starts shrieking or otherwise engaging in distracting behaviour (including touching the driver)? We do hold others accountable for, in effect, interfering with the driver.
    Here, we know the texter was, in part, a factual cause of the crash, the only question is whether she is legally the cause.

    • The mention was made that no one should be policing the driver if they are not in the car, so the distracting passenger scenario is irrelevant.
      While the laws regarding the bartender’s responsibility are a stretch, to me, that scenario involves someone who is under the influence and not capable of making a sound decision. Why would the judgement of the boyfriend be impaired? Why would it be Colonna’s fault?

      • You took the words right out of my mouth. In the dram shop laws, the bars have actively and knowingly participated in incapacitating a patron, and have a duty to mitigate likely harm.

        • Is not the texter actively and knowingly incapacitating the driver from driving when he/she knows the driver will be texting back?
          The distracting passenger scenario is not irrelevant–it is directly analogous as both involve third parties interfering with the driver’s attention to driving. The only difference is geography, a minor factor relative to potential for distraction.

          • The texter isn’t interfering with the driver’s attention. The driver chooses to look at his phone. A passenger directly distracting the driver is something the driver doesn’t have a choice about.

          • The context in which this was presented:
            “Even if the driver is foolish enough to routinely read and send text messages while driving, it is not the legal or ethical duty of others to police his driving habits when they aren’t even in the car.”
            This is at the top of the post.
            “WHEN THEY AREN’T EVEN IN THE CAR”, (as the distracting driver would be. ).

    • Pointing out the excessive serving of alcohol as an example doesn’t show how it is right to hold a text sender accountable for an accident, but rather shows why it is wrong to hold the alcohol server accountable for any accidents.

      If anything it ought to open a dialogue to determine what other sort of misdemeanor bartenders ought to be held accountable for, because it is indeed not the bartenders fault when a drunk gets into a wreck.

      Your passenger example nullifies itself, because there IS a line between the reasonable actions of a passenger, such as casual conversation, and the aggressive and reckless actions of a passenger such as you described. Holding someone accountable for their intentionally unreasonable interference is acceptable, but holding someone accountable for a reasonable level of ‘interference’ is not.

      No, the texter ought not be held accountable.

  2. Doesn’t the foreseeability of the accident occurring create a duty sufficient to establish a tort? Based on their not texting and driving ad campaigns, the phone companies, or at least their lawyers, seem to think so. They’re obviously concerned about their liability, and all they do is provide the technology.

    • How? The texter doesn’t foresee an accident, nor should she. She sends a message. She can foresee that he may read it at a traffic light or while stuck in traffic. The forseeability is extremely attenuated. Next up—liability for the phone retailer, who knows a high percentage of your drivers text while driving.

      • I never practiced car wreck law, but I think I disagree Jack.

        I do not text my wife when I know she’s driving becuase I don’t want her reading a text and getting in a wreck and getting hurt. We both try to not even take phone calls while we’re driving. So obviously, I’d have a hard time arguing I can’t foresee her hurting someone else with her car.

        Again, I do think the phone retailers and phone companies are in fact terribly worried about just this type of case and theory of liability. Do you really think they’re running all those don’t text and drive ads just because they feel bad about teenagers getting killed while texting? I think this is just tort law catching up to new technology.

        I do think reasonable people can disagree as to whether a judge would be ethically bound to reject this theory.

        • Your personal practices to add an additional safeguard are good and responsible, but that does not mean that people not following your safeguard is irresponsible.

          • Thanks for the praise but I was just trying to make an illustrative point about foreseeability.

            The railroads killed and maimed countless customers, employees and other innocents. It took a while for the courts to catch up to the then new technology and impose liability where appropriate. I guess we’ll see how this plays out. Unlike Jack, I just don’t think it’s a slam-dunk, no liability situation.

  3. I want the radio stations added to this. I find it terribly distracting when they play ads or sound effects that have police or other emergency sirens in the background. They are doing this during the ‘drive time’ shows marketed to people who are actively driving. Shouldn’t they have an even greater responsibility than a texter who may not actually know if the person is driving or not.

    Who else can we get in trouble?

  4. “Whenever one of these creative liability theories gets before a judge or a jury, we hold our collective breath, because sometimes they prevail despite logic and fairness. ”
    *****************
    Is it any wonder?
    Our “leaders” won’t take personal responsibility for their actions, so we have an increasingly large part of the population passing the buck.
    I would say get ready for more of this rubbish.

  5. I agree with Other Bill: it’s not a slam dunk. The obnoxious passenger described by Jay (hello Jay!) and the insistent texter/caller who, as in this case, KNOWS the recipient of the call/text is driving should know that his/her conduct is/is likely to be distracting to the driver. Such knowledge could bring the behavior into the realm of negligence or recklessness. One might argue that liability should attach to remote participants only if the conduct by the non-driver meets a recklessness standard (i.e., greater than negligence), but I can definitely imagine situations in which that could occur. Not sure if this is one of those cases, but it’s possible.

    • The situation you describe, yes, but making a phone call or a text message is a standard act that should always be presumably safe. Do you really want to see lawsuits when a relative calls an elderly woman or man living alone, and the argument when he or she falls answering the phone is that the caller placed her in danger? I think that’s a better argument than than this lawsuit, because the elderly woman or man was pretty certain to try to answer the phone, and there is nothing illegal or normally reckless about doing so. My mother often refused to use her walker, even though she often fell without it. Everyone who knew her was aware of this—was calling her therefore negligent?

        • Yes, some behavior is presumably safe, but circumstances can override that presumption.
          Best, as driver, had a duty of care to himself and to others on the road. Colonna interfered with that duty. In my analysis the question is not whether texting is presumably safe, we’ll assume that to be the case, but, whether in these circumstances, that presumption is overcome because Colonna’s texting was such an inappropriate interference with Best’s duty of care (because it occurred knowingly, intentionally, or recklessly) that liability should be shared. Standard tort law. Yes, Best has primary responsibility (he could have ignored the phone). Primary responsibility, however, does not mean sole responsibility (in most states).
          According to the underlying article, there were 62 text messages in the hours before the crash. How many of those occurred while Best was driving? At what point, if ever, did Colonna become aware of that fact and how often did she text after she had that knowledge? I think these are key questions in determining whether Colonna’s texting in this circumstance should result in liability and, as they are not answered here or in the underlying article, I just don’t see how you can call it a slam dunk.

          • We can solve this by executing all people between the ages of 14 and 19 years of age. Our teenager sends over 4,000 text messages a month. The number you are describing is normal and steady state. If the driver of the car was distracted by texts while driving and receives vast numbers of texts, he had a duty to turn off his phone while driving. I get texts while driving and I ignore them or I pull over to check them, teenagers can too. You can’t sue the friends who texted the driver. I ‘cured’ the teenager of the texting and driving habit by making him drive an old Jeep for a few months. It was stop texting while driving or die. Try to text in a vehicle with a manual transmission, 6″ of play in the steering wheel, and a 1* safety rating!

  6. Whenever one of these creative liability theories gets before a judge or a jury, we hold our collective breath, because sometimes they prevail despite logic and fairness. Let’s hope this one does not, but don’t blame the attorney if it does. Blame the judges.

    Correct me if I am wrong, but is not liability determined by statute?

    Are judges really in the business of creating liability rules where none exists?

      • I find that disturbing. It would be one thing if a statute held texters liable for this kind of things; judges would simply be applying the law. Judges actually inventing this liability means that we would not be able to predice whether a particular act would make us legally liable.

          • That is the real problem; judges making up law as they go along.

            The rules of liability should be set solely by the legislature, judges should simply apply the legislature’s rules to the facts of the case.

  7. Fascinated that what seems like such a no-brainer is generating so much discussion.

    Who’s fault is it if I go through my mail while driving?

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