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The Law Is Catching Up to Drivers Who Text — And Those Who Initiate the Conversation

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If you’re texting while driving, you’re breaking the law — at least in 46 states. It’s deadly business too: in 2014, 404 people were killed in the United States by drivers using their cell phones. After the physical damage is done these offending drivers are then looking at jail time, and the prospect of being sued by the other party. It’s costly in myriad ways. Drivers who text are the obvious targets of litigation, but what about the party on the other end? What liability do they hold should their texting companion get into a serious accident?

According to Michael Luber, a respected Pennsylvania attorney who specializes in litigating personal injury cases involving automobile accidents, no one who initiates a texting conversation with a driver has as yet been charged with a crime. But that may be changing: In 2013 an 18-year-old driver who was texting his friend while driving crashed into a New Jersey couple; they both lost legs in the accident.

The law in Pennsylvania does prohibit texting and driving: Section 3316 of the Vehicle Code in the State of Pennsylvania states that text messaging on a cellular phone while operating a motor vehicle violates state law. The couple sued the texting driver who hit them, as well as the 17-year-old girl who originated the texting conversation. While the lawsuit was dismissed, the decision was appealed by the victims. The Supreme Court upheld the dismissal, contending that it was impossible to prove that the 17-year-old girl was aware that her counterpart was driving at the time they were texting. The fact remains, however, that 50 percent of all traffic accidents involving teenage drivers stem from distracted driving.

Case closed? Not so fast. The court subsequently rejected the defense claim that the other texting party held no absolutely responsibility for the crash. In fact, the judge in the case stated that while sending a text does not mandate that the recipient acknowledge receipt of the text, the sender assumes some level of risk if he or she knows that the recipient is driving and will read the text upon receipt. The person sending the text, therefore, “has knowingly engaged in distracting conduct.” As such, the judge ruled, “it is not unfair also to hold the sender responsible for the distraction.”

Similarly, earlier this year the family of a Pennsylvania man who was killed by a texting driver asked the court if the party she was texting with could be held responsible for the crash. The court ruled in the family’s favor, and the lawsuit was pursued.

Mr. Luber points out that no state laws specifically prohibit sending text messages to a person operating a vehicle, and adds that it’s an uphill battle trying to persuade a jury to rule for a plaintiff seeking compensation from a defendant who was texting a driver at the time of a crash. “Essentially, in a civil case, you would have to convince a jury that someone sending a text message was aware that the recipient was driving at the time, and that receiving the text message was a contributing factor leading to the crash,” Mr. Luber says. “When you’re driving, it’s a matter of choice whether a driver opts to respond to an incoming text message, or ignore it until later.” It’s not imperative that the recipient of a text message who is driving responds, unlike responding to other distractions, such as loud music or a conversation with a fellow passenger.

While no one has yet been convicted of knowingly texting a driver resulting in a crash, the caveat is more evident than ever: When you text and drive, you take a significant risk — one that can prove costly, even deadly. And just because you’re not in the car does not mean you’re immune from responsibility and potential liability should your driving texting partner hit another vehicle. Mr. Luber reiterates that the bottom line is clear: Do not text and drive, and ignore any incoming messages until you are safely at your destination.