Texting and Driving – The Evolving Theories of Liability

by McNees Wallace & Nurick LLC

[co-author: Erica M. Koser]

Distracted driving has become one of the leading causes of motor vehicle accidents and fatalities in the United States.  In 2014 alone, Pennsylvania saw more than 13,964 crashes involving a distracted driver, including 49 deaths.  At least 46 states have made an effort to combat this growing problem in recent years, banning texting by drivers.  Many people generally are aware of these laws, and even the penalties they carry.  Perhaps not obvious, however, are the growing areas of liability flowing from the habit of texting while driving.  Is liability limited to drivers?  Can police field test a driver’s phone after an accident?  Can companies be liable if they facilitate, or even encourage, drivers to use their phones?  Both state courts and legislatures have recently addressed all of these issues, and more.

In 2013, a New Jersey state court took a precedential step and created a theory of liability known as “sender liability.”  In Kubert v. Best, the court stated that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”¹  In Kubert, the court ultimately concluded there was insufficient proof that the sender had actual knowledge the driver was driving before she sent the message that allegedly led to the collision.  Therefore, the sender of the text message avoided liability.  Nonetheless, the court created a standard for sender liability.

In 2016, courts again raised the issue of sender liability, this time in the Court of Common Pleas of Pennsylvania.  In Gallatin v. Gargiulo (Lawrence County), the plaintiff was driving his motorcycle when struck by another vehicle.  The driver of the vehicle continued to drive after striking the motorcyclist, dragging the victim for approximately 100 feet, ultimately resulting in his death.  An investigation determined the driver was texting at the time of the accident.  The decedent’s family filed an action for negligence and wrongful death, naming the driver, as well as the two men who were accused of texting her at the time, as defendants.  The two “sender defendants” filed preliminary objections to the claim and sought to be dismissed as defendants.  The court dismissed their objections, relying on both the Kubert holding, as well as the theory of acting in concert.  The Gallatin court described the theory in this manner:  “[A] third party can be liable if he/she encourages another in violating a duty.”  Courts frequently apply the same theory in other negligence actions and in criminal cases.  Although the court has yet to hear the merits of the case, by allowing the parties to litigate on the theory, the Gallatin court has signaled its inclination to extend liability to those who knowingly distract drivers by sending text messages.

While the aforementioned cases focus on those communicating with drivers, a Georgia couple is seeking to extend liability to the owners of the medium used to communicate.  In Maynard v. McGee, a plaintiff is asking a state court in Georgia to find Snapchat negligent for an accident that allegedly occurred while a driver was using Snapchat’s “speed filter,” which superimposes the user’s speed on a recorded photo or video.  Passengers stated the defendant recorded a speed of 113 miles per hour seconds before the collision occurred.  Police estimate that, at the time of the accident, the vehicle was still driving at a speed of 107 miles per hour.  Although McGee and her passengers walked away relatively unhurt, the plaintiff continues to suffer from a traumatic brain injury.

The accident involved in Maynard was not an isolated example, as there are similar reports of accidents caused by drivers who attempt to document excessive speeds using the Snapchat speed filter.  Some of the more publicized accidents have occurred in Brazil, Philadelphia, and Kansas City, with speeds ranging up to 140 miles per hour.  Citing these accidents as evidence, the plaintiffs in Maynard set forth a traditional negligence argument:  Snapchat was on notice of these previous accidents, Snapchat failed to act by removing the filter, the filter was a factor in causing the plaintiffs injuries, and therefore, Snapchat is negligent.

Snapchat, however, prevailed by invoking the Communications Decency Act (CDA) which gives a “provider . . . of an interactive computer service” immunity from liability where a party attempts to impose a duty that is derived from its “status or conduct as a publisher.”  The court added that choices that users of Snapchat can make stem from Snapchat’s status as a publisher and are therefore protected under the CDA.  This case illustrates the difficulty of imposing liability for distracted driving on a third party who merely provides users with the ability to use certain features that may ordinarily be harmless, but become extremely hazardous when used while driving.

While state courts continue to address the issue of civil liability, the New York state legislature has been busy considering new legislation that, if passed, will increase the enforcement of the state’s current ban on texting and driving.  “Evan’s Law,” sometimes also referred to as the “Textalyzer” bill, proposes a roadside field test that will allow a police officer to determine if a driver, at the time of the accident, used a portable electronic device to text, email, or do anything else forbidden under New York’s texting law.  Justification for use of a Textalyzer relies on the legal theory of “implied consent,” which assumes that as a condition of driving, a driver implicitly agrees to have his or her cell phone and/or portable electronic device searched after an accident; refusal to take the test can result in a suspended or revoked license.  Police rely on this same legal theory for breathalyzers, and proponents of the bill argue that the impairment of texting is similar to intoxication.

Despite already having a law that imposes a traffic violation upon those who text while operating a moving vehicle, some in Pennsylvania believed that a simple traffic violation was not a sufficient deterrent and punishment.  State Representative Jaret Gibbons sponsored “Daniel’s Law,” named after the plaintiff in Gallatin, which increased the criminal penalties for violations of the anti-texting statute that result in severe injury or death.  The law, signed by Governor Wolf in November 2016, adds five years to a sentence based upon homicide by vehicle when texting distracts the driver of that vehicle.  The law also allows the state sentencing commission to provide for an enhanced sentence for a violation of the anti-texting statute in an active work zone.  As we are almost four months into the enactment of Daniel’s Law, we have yet to see the concrete impact the law will have on civil liability.

While answers to many questions regarding liability remain uncertain, the current discourse indicates that the theories of liability related to texting and driving likely are to evolve.  The attorneys at McNees Wallace & Nurick have significant experience with motor vehicle liability issues and regularly monitor legislative, regulatory, and judicial updates on both the federal and state levels.

¹ For more information on Kubert v. Best, see the June 2014 article entitled Can Sending a Text Message Make You Liable for a Car Accident?.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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