You know a person is driving when you send them a text. The driver finds their phone or diverts their eyes to read your text. The driver causes an accident.
Should the sender be held liable?
Let's say it's a phone call, is the caller liable?
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No...I have no way of knowing if someone is driving. If they are, I don't expect them to answer. I get ad texts from my cell company, telling me my payment is due. I wouldn't expect them to be liable for sending it while I'm driving if I crash.
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That's interesting. My general feeling is that when you get in the car, you should put your phone away. We have bluetooth, so when you get in the car, the phone is connected and it can read you text messages you recieve, but honestly, the feature is pointless because you can't respond.
I think texting and driving is like drunk driving, we all know it's bad but sometimes people feel like they are "fine" and can just look away for a second. I personally don't ever take that chance, but I know people that do regularly.
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No. That is like saying a bar tender should be liable if a customer of theirs got in to an accident while drinking and driving.
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@Dandelion: good point. I just received an Amber Alert via text and it scared the begeezus out of me. I swear the alert sound was different.
@looch: when I received my latest car the dealer wasn't able to set up my work phone and was unwilling to set up my personal phone to the hands-free system within the car. I think safety measures are good when they work and are used.
@pui: I think bartenders are liable if they keeping serving drinks to a belligerent drunks. Someone who holds their liquor well is just as dangerous behind the wheel.
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@Mrs. Lemon-Lime: That sort of law is usually more to prevent health issues or bar fights than DUIs. But even if someone did have a lot of drinks, the bartender isn't responsible for you once you leave the bar. He didn't even know if you even had a car. In the end the bartender is not in charge of determining when you are fit to drive.
Same goes for texting. The person on the other end should not be responsible to determine if it's safe to text you, the driver is responsible to determine if its safe to answer it.
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@pui: oh, ok.
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I think in a perfect world, using the bartender/drunk driver scenario, we all hope that a bartender would stop serving someone that's clearly had to much to drink, regardless of their transportation method. I think that's being a good citizen.
As for the person sending the correspondence/calling being responsible, I am just trying to think of a scenario where a person sending the text could be trying to distract the other person. I can't think of any feasible scenarios, other than teens doing it to be annoying.
eta: I thought about a bit and the only thing I could think of is when someone sends a bunch of messages in a short time, or makes it sound like a medical emergency when it's a fashion crisis.
I also admit that I would think twice about what I am sending if it could make me potentially liable.
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No that's crazy, I have no way of knowing if someone is driving. If I do know the person could be driving and I send them something it's their responsibility not to read it while driving.
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I think that's ridiculous!
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That is crazy. How am I supposed to know you are driving? And just because I text you doesn't mean you have to immediately respond.
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@looch: Yes I'd hope so too, and I think most would, but he's still not responsible for keeping track of when you are fit to drive. If he was there would be breathalyzer tests before you could leave a bar. It is up to the customer to be responsible with his driving.
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In the article, it says the NJ courts said the sender is not liable but that if you know the receiver is driving, you should refrain from texting them. I don't know if you can create a law but it might be good advice. I know some people who can't stand pop up notifications on their phone and has to clear them when it comes in. In this case, I have contemplated not sending them a text.
Also, what about people who use hands free texting software? My car has the ability to receive texts so that I can read without taking my hands off the wheel. It doesn't work for my phone so I don't know how distracting (or useful) it is. But I think there are exceptions to the rule and some users can talk-to-text safely.
I think there was an app called Drive Safely that would automatically send texts saying that you are driving and you would get back to them when you got to your destination. I looked into it a while ago but I'm not sure if they successfully launched it or not.
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@pui: It varies by state, but in many (many!) states, it is illegal for a server/bartender to serve someone who appears visibly intoxicated alcohol.
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I agree that in most cases there is no way the sender could know. But I will say, I won't text my husband when I know he's driving home from work because I don't want it to distract him.
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The article says "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.”
So in that case if you do know the person is texting you whilst driving and you keep texting them back then yes there should be some form of liability.
@pui: A bartender in certain states IS liable if they keep serving drinks and the person gets into an accident. I know Illinois is one of those states that has a "dram shop act" that holds bartenders and liquor stores liable
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@MsLipGloss: Then they were likely unfit to drive 2 drinks ago if they're that drunk. That still doesn't have anything to do with determining driving ability. Also the bartender can cut you off, he can't hold you there against your will.
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Thats nuts. It's the person physically texting while driving who is liable, not the person on the other end. How are you supposed to know someone is driving while you are texting anyway?
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This just seems silly to me... People need to take responsibility for their own actions and quit blaming others.
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@Mrsbells: So if I have 2 drinks at a bar, drive and get in to an accident because I am a lightweight, the bartender can be liable?
How was he supposed to know 2 drinks got me that drunk? How was he supposed to know I even was driving home?
Likewise, how can someone texting know you are driving?
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That's crazy! But it also makes me thankful I don't even have a texting plan - this won't ever be a problem for me since I don't send texts!
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@pui: Yes it does to the extent that alcohol impairs/ dulls many abilities/senses, and the ability to safely operate a vehicle is one of those. That being said, I am not going to argue with you about what the law is/requires. It is what it is, good, bad or indifferent. Whether you choose to accept that is up to you.
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@MamaMoose: same. I don't text my husband when he leaves for work. I send him a text to find out if he's coming home on time or later at the close of his day hoping he is still in the office.
I have no clue where my brother is or what he is doing when we text and we only communicate via text.
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Although I definitely think this is overreaching, I see this as a(n) (somewhat desperate and ambitious) attempt to minimize needless accidents/injuries/deaths that have resulted from texting.
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I think this is a MAJOR slippery slope. I don't think that decision it going to hold up. It's just so vague. The ruling is simply: "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.”
How do you prove that the original texter knew the person was driving? What constitutes special reason? When I text someone, I assume they will not respond/read it if they are driving. Now, if they do and indicate they are driving and I continue to text, that's another story. But this law seems to apply across the board and not just in those situations. I do not like it one bit.
@pui: The bartender personally isn't liable but the bar itself may be. There are laws in the US finding alcohol serving establishments liable when they sell alcohol to visibly intoxicated people who then injure or kill innocent third-parties. (Can you tell I handle this stuff? LOL)
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I don't think the sender should be liable for the driver reading/replying to texts. People should know to put the phone away when you drive.
@pui: whether someone is served at a bar or leaves another persons house and drunk drives, where they leave from is responsible for makin sure they aren't driving drunk.
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@LindsayInNY: A bartender can be personally liable . . . Although it is rarely enforced, liquor liability exposure is not just limited to establishments whose primary business is the sale of alcoholic beverages. Approximately 35 states currently have social host statutes or common law that holds private event hosts liable for the actions of their guests.
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@MsLipGloss: My wheelhouse... there's insurance to cover those exposures.
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@MsLipGloss: Well, yes and no. If a bartender is sued individually, his/her employer's insurance company defends the bar as well as the bartender, since the events were in the course of his employment. We only defend typical dram shop cases - not social host related ones.
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@Mrs. Lemon-Lime: Some policies can expressly exclude coverage for these events (can be determined to be in intentional act, etc.) . . . it can get pretty tricky (and I bet at a minimum the insurer would issue a reservation of rights/file a dec action if they were considering disputing coverage.
Oh, and
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@LindsayInNY: There are situations that can create liability for bartenders (they can do things that take their actions outside of the scope of vicarious liability for the employer, as well as they can also do *freelance* work events that are not part and parcel of any regular job they may have). I digress . . .
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@MsLipGloss: Oh no, I agree. Was just trying to keep the legal-speak general
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@LindsayInNY: lol, gotcha! . . . it's so hard to get out of the zone once I get in! >.<
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@MsLipGloss: Haha, I hear ya!! There's the "general" rule and all million exceptions that go with it
TBH, I find dram shop kinda fascinating!
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@pui: I don't know all the details of the law, but I believe the general idea is for the bartenders to stop serving people that seem they have had too much to drink. They are not expecting the bartenders to know everything and know exactly how many drinks gets each person inebriated but just to use good judgement. Most bartenders already do this and cut people off if they seem to not be handling their alcohol well
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I think it would be ridiculous to hold the non-driving texter liable. I have no way of knowing that someone I am texting is driving unless they tell me. I have had friends text that back to me before, and I won't text them after that because I don't want them taking that risk.
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@Sunshine1810: Yeah I think the law is only for situations where you actually do KNOW that the person is driving. So for instance if the person texts back and says I'm driving and then you keep texting, thats when you are liable
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No. I know DH is driving all the time and I still text him. He knows how I feel about looking at the phone while driving and I fully expect him to wait until he gets there before looking. If he answered me quicker then I think he should I'm pissed. But if I don't text that second..... I might forget or I might not have time later, so I like to get it done with.
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I say no. It's the driver's responsibility to have their phone safely stored and not distracting them. If I know someone is driving I may text them so when they are stopped they can safely reply by call or text. You should not be responsible for their distraction. That's like saying if a woman with a revealing outfit walked next to a car and distracted the male driver who caused an accident, that it is her fault. No way!
TBH, I find dram shop kinda fascinating!
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38 comments