A recent decision by a New Jersey appellate court has held that one sending a text to someone that is known or should be known to be driving, and in some way encourages a response to that message, may be liable for injuries sustained in a resulting accident. That said, the applicability of this rule seems rather limited.
In this case, Kyle Best hit and injured two bikers. During the resulting litigation, it became obvious that he was exchanging texts with Shannon Colonna immediately before the accident. Upon learning that, the plaintiffs included Colonna in the lawsuit. Colonna moved for dismissal arguing that she owed no duty to the plaintiffs and was in no way involved in the accident.
The court was clearly sympathetic to the plaintiffs, not surprising given the serious injuries, but refused to hold Colonna liable. However, the court did find that "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, [that] the recipient will view the text while driving." The court explained that because "Colonna did not have a special relationship with Best by which she could control his conduct [... n]or is there evidence that she actively encouraged him to text her while he was driving," Colonna could not be found liable for Best's accident. The court added that despite what Colonna might have known, and "[e]ven if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law." Explaining that culpable conduct by the texter would involve something beyond sending the text, the court found that "[p]laintiffs produced no evidence tending to show that Colonna urged Best to read and respond to her text while he was driving."
Sensibly, the court stated that "one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving." Even where someone may be driving, not "every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction."
Despite the general holding of this decision, reading it indicates that actually finding liability for sending a text seems rather distant. That said, don't text and drive.