In several decisions, courts have found that the sender of a text message may be held liable if they knew, or in the exercise of reasonable care, should have known that their message would be a distraction to the driver.
Pennsylvania, like most states, prohibits the use of cellphones and other handheld devices while driving under Section 3316(a) of the motor vehicle code. It is widely understood that a driver who causes an accident because he is texting and driving can face liability and even punitive damages based on the use of a cellphone. Just like drunk driving, distracted driving poses an extreme safety risk to other drivers and pedestrians, and a Pennsylvania jury may similarly find that punitive damages are warranted where a driver causes an accident due to his or her attention being diverted away from the road to focus on a cellphone or tablet. See Rockwell v. Knott, 32 Pa.D. & C. 5th 157 (Lacka.Co. 2013) (holding that it is permissible for a jury to determine whether communicating on a PDA while driving is “a wanton and reckless act”).
What is less understood however, is whether a person who sends a message to someone who is driving may be held liable for causing a distracted-driving accident. In several decisions, courts have found that the sender of a text message may be held liable if they knew, or in the exercise of reasonable care, should have known that their message would be a distraction to the driver.
In the case of Gallatin v. Gargiulo, No. 10401 of 2015 (Lawrence Cty. Ct. Cmmn Pleas 2016), a Lawrence County trial court held that the plaintiff pleaded a viable claim in alleging that the defendant sent text messages to the driver of a motor vehicle when he knew or should have known that the driver would read the messages and become distracted while driving. Gallatin arose from a collision between a motorcycle driven by the plaintiff’s decedent, and a vehicle driven by the defendant, Gargiulo. As Gallatin slowed his motorcycle to make a turn, the truck directly behind him operated by Gargiulo failed to stop and crashed into Gallatin’s motorcycle, resulting in Gallatin suffering fatal injuries.
In that case, the plaintiff alleged that Gargiulo had been distracted at the time of the accident by reading text messages on her phone. Specifically, it was alleged that Garguilo was responding to text messages sent from her husband, defendant, Joseph Gargiulo and her alleged paramour, defendant, Timothy Fend. It was alleged that Garguilo and Fend were liable for contributing to the fatal accident because each of them “knew or should have known that by sending texts to defendant, Laura E. Gargiulo, she would read and respond to the text message while operating her vehicle.” The court agreed that this was a viable theory of liability. In denying the defendants’ preliminary objections, the court held that the plaintiff’s claims could proceed, on the theory that the defendants had aided and encouraged the defendant driver to violate her duty of care and safe driving, by knowingly sending text messages to a driver who they knew or should have known was operating a vehicle at the time.
While this may seem like a 21st century issue with few legal precedents, the court in Gallatin relied on Section 876 of the Restatement of Torts (Second) (persons acting in concert) as a basis for liability. Section 876(b) provides that a defendant may be liable for the tortious conduct of another, if he, “knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.” See Restatement of Torts (Second) Second 876. The court in Gallatin found that Section 876 applied here, because the plaintiff alleged that the defendants had acted in concert to cause the accident. It was alleged that the defendants knew or should have known that the driver would read and be distracted by the messages they were sending, and that this was a proximate cause of the accident itself.
Gallatin was also not the first case to reach this conclusion. Prior to Gallatin, the New Jersey Superior Court relied on Section 876 to reach a similar holding. In Kubert v. Best, 432 N.J.Super. 495, 75 A.3d 1214 (N.J. Super. 2013), the Superior Court held that as a matter of civil common law, the sender of a text message can be held liable if an accident is caused by the driver being distracted by reading the message, “if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” In this case, the defendant driver crossed over the middle line of traffic and collided with the plaintiffs’ motorcycle, causing catastrophic injuries to the plaintiffs, a husband a wife. Discovery later revealed that the defendants had exchanged 62 text messages on the date of the accident, including while defendant Best (who was the operator of the striking vehicle) was driving home from work. Text message logs revealed that Best began texting his girlfriend, Defendant Colonna, immediately after leaving work. Best and Colonna exchanged text messages thereafter almost continuously from the time that Best left work, through the time when he placed a phone call to 911 to report the accident, only seven minutes after leaving work.
Under these facts, the court endorsed a theory of potential liability against a text message sender under Section 876, and also found that a plaintiff could properly allege a theory of independent negligence based on Section 303 of the Restatement of Torts (Second) (Acts Intended or Likely so to Affect the Conduct of the Other or a Third Person as to Involve Unreasonable Risk). Section 303 provides in relevant part that, “An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person or an animal in such a manner as to create an unreasonable risk of harm to the other.” Restatement of Torts (Second) Section 303. The court reasoned that, “it would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road, for example, by suddenly holding a piece of paper in front of the driver’s face and urging the driver to look at what is written or depicted on the paper.” Therefore, the court reasoned that the sender of a text message could be held independently negligent for sending electronic messages that he knew or should have known would have the same distracting effect on the driver of a motor vehicle.
However, the court in Kubert ultimately held that, under the particular facts of that case, the plaintiffs’ claims failed because they had not provided actual evidence “to show that Colonna urged Best to read and respond to her text while he was driving.” The fate of the case was ultimately determined by the critical lack of evidence, as the plaintiffs were unable to produce the text of the messages themselves, which could have shown that Colonna knew that Best was driving during their conversation. Without the messages, the court found that there was no way for the Plaintiffs to show that Colonna had the knowledge required to hold her liable for the accident. The Kubert court held that for a defendant to be liable in this situation, there must be evidence that the defendant knew or should have known that, “the recipient is both driving and will read the text immediately.”
The dangers of distracted driving are well documented and are here to stay, as phones have become larger, more advanced, and more capable of being a dangerous distraction to a driver. In cases where a party contributes to this distraction by texting or messaging the driver of a motor vehicle, whom the sender has reason to know is driving and will likely read the message while driving, the law provides a narrow window to hold that person accountable for any resulting harm. However, in any case where distracted driving may have played a role in an accident, evidence preservation and thorough discovery will be key to determining whether a text message sender may be liable for creating a dangerous and distracting condition.
Rob Braker leads the vehicle accident and premises liability practice teams at Saltz Mongeluzzi and Bendesky. His cases involve complex passenger vehicle, motorcycle and pedestrian accidents, commercial trucking accidents, serious injuries occurring on unsafe commercial properties, and claims against negligent alcohol servers.
Pete Veloski is an is an associate at the firm who represents individuals who have suffered serious accidents and catastrophic injuries.
Originally published by The Legal Intelligencer on November 3, 2021.