TURNING TEXTERS INTO A CIVIL LIABILITY: TEXTING AND DRIVING BANS AND NEW WAYS OF EXPANDING LIABILITY ON THE ROAD.

• Author: Jeha, Julianne

1. INTRODUCTION

   [Daniel] Gallatin was on his motorcycle on his way to visit his daughter when he was hit and dragged by an SUV. State police quickly learned that the driver, Laura Gargiulo, had received a text just moments before the crash. "This wasn't an accident. This could have been prevented. Accidents can't be prevented," said Daniel's daughter, Michelle. According to court papers filed by state police investigators, the text read, "16 hr day. I don't get off till 5 am. hun." ... It was later discovered that the text was sent by Timothy Fend ... [T]he Gallatin family sought legal advice ... [and] ... Attorney Doug Olcott ... said there is a heavy burden of proof to show that a text sender should be held liable. (1)

   The use of a cellphone while driving is undoubtedly distracting but surprisingly, fatalities in motor vehicle accidents have decreased since the beginning of the 21st century. (2) Although significant efforts have been made to deter texting while driving, recent cases raise an issue of first impression to state courts on whether a non-driving texter should be held liable to a victim of distracted driving. (3) This Note seeks to explain the history and creation of the Department of Transportation and the agency's efforts in creating national safety regulations on highways by comparing efforts to combat drunk driving with efforts to deter texting and driving. (4) This Note will also compare the facts of two similar cases involving third parties sending texts to drivers and explain the different outcomes of each court's decision. (5) Finally, this Note will address the rationales used in the outcome of each court and will highlight challenges of imposing liability on a non-driving text sender. (6)

2. HISTORY

   In President Lyndon B. Johnson's State of the Union address, he announced his intent to create a Department of Transportation. (7) That year, President Johnson signed the Highway Safety Act and the National Traffic and Motor Vehicle Safety Act. (8) The Highway Safety Act of 1966 was later amended in 1970 to establish a National Highway Traffic Safety Administration (NHTSA), formerly known as the National Highway Safety Bureau. (9) Since 1970, NHTSA has successfully established drunk driving laws, drinking age laws, seatbelt laws, and recently expanded to prevent distracted driving. (10)

   The NHTSA's effort to prevent drivers from texting while driving is similar to the prevention of drunk driving. (11) In the 1980s, President Reagan addressed the national issue of drunk driving and created the Presidential Commission on Drunk Driving in 1982, which influenced social norms through media and inspired legislators to enact laws to deter drunk driving. (12) Similarly, the NHTSA seeks to deter distracted driving and has conducted studies to determine how to achieve the result effectively. (13) In 2010, the NHTSA designed a distracted driving demonstration program that was tested in Syracuse, New York and in Hartford, Connecticut. (14) The program monitored the amount of time spent on media messages aiming to raise awareness of distracted driving laws and the number of citations issued by officers. (15) The NHTSA's objective in modifying driver behavior was notably effective in reducing cellphone use by thirty-two percent in Syracuse and fifty-seven percent in Hartford over a ten-month period. (16)

   In conjunction with the federal government's effort to combat texting and driving, the National Transportation Safety Board ("NTSB"), an independent agency investigating major accidents in civil aviation and other forms of transportation since 1967, made a suggestion in 2011 to all fifty states and the District of Columbia to create a ban on texting while driving. (17) As of July 2017, the Governors Highway Safety Association, a nonprofit organization addressing behavioral highway safety issues, collected data and forty-seven out of fifty states, as well as the District of Columbia, Puerto Rico, Guam, and the Virgin Islands have banned text messaging while driving. (18)

3. FACTS

   Advocates against texting and driving, like the Gallatin family of Pennsylvania, have proposed tougher legislation to local governments. (19) The Appellate Division of New Jersey's Superior Court decided in Kubert v. Best, (20) that a non-driving text message sender is potentially liable for any resulting damages of a motor vehicle accident if the party had knowledge that the motorist was driving while sending a text. (21) In 2009, Linda and David Kubert were severely injured after being struck by a pickup truck driven by 18-year-old Kyle Best ("Best"). (22) The Kuberts proceeded to file a negligence suit against the distracted driver, Best, and his friend, Shannon Colonna ("Colonna"), who sent him the text while driving. (23)

   The claim for compensation against Best was settled before trial and the Kuberts appealed the trial court's dismissal of the claim brought against Colonna. (24) The New Jersey Motor Vehicles and Traffic Regulation statute makes hand-held use of cell phones illegal and punishable with a fine of $100, but the statute did not address the issue faced on appeal. (25) During trial, Colonna's attorney argued that Colonna was not present at the scene and therefore did not have liability for the accident. (26) The defense also argued that Colonna did not know Best was driving and did not have a legal duty to avoid sending the text. (27) The appellate court determined that the defendant's conduct was negligent and found Colonna owed a duty to the plaintiffs. (28) Furthermore, the court held that more than one defendant can be the proximate cause of a plaintiff's injuries. (29) However, additional proof is necessary to establish the sender's liability and to do so, the plaintiff must find that the text sender knew or had special reason to know that the driver would read the message while driving and become distracted from operating the vehicle. (30) The person who sends the text to a driver is not liable for the driver's negligence, instead the driver is responsible for his or her own negligence created by the rules of the road. (31) However, a text sender does have a duty to other drivers on public roads to refrain from sending a driver a text. (32)

   In contrast, the New York Supreme Court of Genesee County recently held in Vega v. Crane, (33) a case of first impression, that a text sender is not liable to the victim of a distracted driver. (34) In 2012, Carmen Vega ("Vega") was struck by car driver, Collin Crane who died as a result of the crash. (35) Vega, the plaintiff who later brought suit to recover for injuries caused by the accident, alleged that Collin's girlfriend, Taylor Crastley ("Crastley"), texted him while he was driving and caused the accident. (36) The plaintiff attempted to use the holding in Kubert as neighboring state precedent because of the lack of precedent in New York that would protect a third party plaintiff from harm. (37) The plaintiff's issue would have forced the court to re-examine Palsgraf and propose an expanded interpretation of foreseeability in negligence claims. (38) Although the plaintiff found a recent New York case which established a precedent permitting an expansion of foreseeability, the court drew a distinction and limited the application of this precedent to physicians owing a duty to the public at large and not to texters. (39) The Court of Appeals in New York gradually expanded the duty owed to individuals but always required the existence of a special relationship between the plaintiff and the injured defendant. (40) However, taking into consideration the New York Court of Appeals' caution of expanding the concept of duty, the Vega Court decided not to expand liability to individuals who send a text, as "the potential expansion ... is astronomical." (41)

4. ANALYSIS

   Creating a duty that is not over-broad and imposing that duty inevitably results in a danger of potentially finding liability for non-driving text senders who should not be held liable. (42) Kubert sets out a bright line ruling which appropriately distinguishes that someone who texts a driver is not automatically liable versus a texter who...