…At least the New Jersey Supreme Court has, anyway.
While I think most reasonable people can agree that texting while driving is a horrible idea, and that people who engage in the practice should be potentially subjected to criminal and civil liability, a recent New Jersey case involving the dreaded practice took a very weird turn. Let’s set the stage with the report from CNN:
Kyle Best was behind the wheel of his pickup in September 2009 driving down a rural highway when Shannon Colonna sent him a text.
The two were teens at the time. He was 18; she was 17, and they were dating. They sent each other 62 texts that day, according to court documents.
Let me pause right here to say that the court seems inordinately obsessed with both the number and content of the messages between the two. Honestly, whether they texted each other twice a day every day over the last year or two hundred times a day is not at issue here. Nor if the texts were innocent or more of the Anthony Weiner headline variety. What’s important is what happened next:
In the opposing lane of traffic, David Kubert was cruising along on a big, blue touring motorcycle with his wife, Linda, along for the ride. They approached Best at exactly the wrong time.
It has all of the elements of your typical texting and driving tragedies, with the exception that the victims and the driver all survived.
Seventeen seconds after Best sent a text, he was calling a 911 operator.
His truck had drifted across the double center line and hit the Kuberts head-on.
The scene Best described to the emergency operator was most certainly gruesome.
“The collision severed, or nearly severed David’s left leg. It shattered Linda’s left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road,” the court document said.
So that’s the scene. Young teenagers involved in texting each other while one was driving precipitates a horrible accident that results in grievous injuries to David and Linda Kubert. The Kuberts sued Kyle Best, which I’m totally onboard with. He is, after all, the person who operating a vehicle while texting which is not only stupid and negligent but also left him open to civil suit. Now here’s where train jumps off the track: they also sued his girlfriend. And while both the original case and the appeal resulted in the Ms. Colonna NOT being found liable, that’s apparently only because there was no proof that she knew Mr. Best was driving at the time of her texts.
The argument they seem to be making Is that if you text someone when you know they’re driving, you’re basically “in the car with them” in terms off civil liability. Now as crazy as that sounds to me and the original judge, the New Jersey Supreme Court seems to think otherwise. From the court documents:
We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. We hold 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.
First of all, I’m not sure how one can tell if a person is driving or not, with or without “special reasons” (psychic powers? Teleportation? Your guess is as good as mine on that). Nor how you’d know that the intended recipient would specifically read the text while they were driving.
Outside of a conversation such as this:
Texter #1: Hey, are you driving right now?
Texter #2: Yes!
Texter #1: Isn’t that dangerous and against the law?
Texter #2: YOLO! ;-D
This whole setup seems to be veering toward the nebulous, implausible or manipulatively insane.
Secondly, according to court documents, not only did the driver initiate the texting conversation, his was the last text sent some 17 seconds before the accident. Which means that he wasn’t even reading her texts when he should have been paying attention to the road. He was typing away at a response. Third, as it’s already against the law and well-publicized, what if the non-driving person who is sending the texts assumes that their correspondent will not be texting and driving, even if he or she already knows that their contact is on the road? If I am texting you, and by some set of “special” circumstances I’m aware that you’re driving at the time, is it unreasonable for me to believe that you’re being a responsible member of society and taking appropriate precautions — either using a hands-free device or even something slightly less sophisticated, like fucking ignoring any texts you get while on the road?
So thanks to New Jersey, we are apparently living in a society where you can be held liable in civil court for expecting people entrusted with expensive devices and dangerous, fast-moving machines to behave like adults. Then again, recent surveys show that adults text and drive more than teenagers so let’s say like a responsible individual. And finally, even if you can prove that Person A specifically knows he/she is texting Person B who’s operating a vehicle, how can you prove that they know he or she will read it as soon as it’s received? And how is it not still the driver’s responsibility? They’re the one in control of the potentially deadly vehicle. It’s their job to focus on the task at hand. Let’s try this another way.
Let’s assume that I have a gun. It’s cocked and loaded with my finger on a hair-trigger when someone screams “HEY TICO!” distracting me so that I mistakenly fire a bullet in that ends up hurting someone, here’s whose fault it’s not: EVERYONE ELSE. It’s not the world’s job to make sure I move through it comfortably. It’s my job to take extra care while handling a dangerous weapon. Yet, despite these common sense notions and the actual facts of the trial, the court went in another direction entirely. The Justices continued:
We are not persuaded by plaintiffs’ arguments as stated, but we also reject defendant’s argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. We conclude 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, the recipient will view the text while driving. But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.
If we’re truly talking about distractions then their logic is flawed. Because everything outside of driving itself is a distraction. And I’m not just talking about texting or phone calls. Ever listen to the radio while driving? Yes sir, that most certainly is a distraction. How about changing the radio station, altering the temperature controls, or rolling down a windows? Distraction, distraction, distraction. Conversing with your spouse, yelling at your kids, and on and on and on. Hell, all of those huge billboards littering highways are specifically designed to distract you from driving so that you’ll notice their ads. What no one is trying to do however is make the your spouse, your kids, radio stations or the advertisers civilly liable for you not concentrating when you should. Somehow texting is in a special category though. Again, if the concept the NJ Supreme Court is agreeing with is that non-driving person sending texts is “in the car” for the purposes of liability, that’s amazing! Outside of the passenger wrenching the wheel to the right or left to purposefully cause an accident, or whipping out a bottle of Grey Goose that they pour in your eyes while speeding down the Interboro Highway, when was the last time someone other than the driver was held liable. The answer is almost never.
Has anyone on the New Jersey Supreme Court ever heard of personal responsibility? I hear it’s all the rage in certain circles. We’re getting dangerously close to women’s sexiness being a distraction that drivers just can not bear. If you think that’s hyperbole then you don’t remember that case where the Iowa Supreme Court said is perfectly fine to fire a women for threatening your marriage. This despite the fact that it was she who put up with years of sexual harassment. So in the battle of most backward blue state court opinions, Iowa still wins. But suddenly a new challenger from the Garden State enters the ring.
Careful there Iowa. New Jersey clearly has its eyes on the prize.