Friday, May 20, 2016

ARTICLE: Expansion of Negligence Liability to Text Senders Untenable

The below article of mine appeared in the May 17, 2016 edition of the Pennsylvania Law Weekly.


Expansion of Negligence Liability to Text Senders Untenable

A riddle of negligence law has always been to what extent the orbit of responsibility extends outward from a tortfeasor's conduct toward an injured party so as to render the tortfeasor potentially liable as a matter of law.

As noted by Dean Prosser in his hornbook on torts and as stated by former Justice Benjamin Cardozo in his famous decision in the case of Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), "Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. 'Proof of negligence in the air, so to speak, will not do.'"
Proving that the law is a living and amorphous concept, the slippery slope of how wide liability should extend in personal injury negligence claims has now collided with the rise of rapid-fire cellphone text message communications in the electronic age.

Expansion of liability

An increasing concern with the use of cellphones while driving to call, or even worse, to text others, is leading a push by some to expand, by statute or common law, the scope of liability of third persons toward those involved in motor vehicle accidents.

Currently, Pennsylvania law outlaws texting while driving and additional legislation is being considered to outlaw all cellphone use while driving. A slew of recent Pennsylvania trial court cases have also considered a common law notion of whether or not punitive damages claims should be allowed to proceed against drivers who were utilizing cellphones at the time of an accident. Some county courts have allowed such punitive claims to proceed and some have not, with no clear trend emerging to date.

A case of first impression

Now, as reported by Ben Seal in his recent Law Weekly article titled, "Texting a Distracted Driver Could Now Bring Liability," another movement for an expansion of the law comes in the form of a recent Lawrence County Court of Common Pleas decision in the case of Gallatin v. Gargiulo, PICS No. 16-0520 (C.P. Lawrence Co. March 9, 2016 Hodge, J.).

In Gallatin, Judge John W. Hodge, in an apparent decision of first impression in Pennsylvania, overruled preliminary objections and allowed negligence and wrongful death claims to proceed, in part, against two defendants on the basis that they were texting a driver as she crashed into a motorcyclist in a fatal accident. The plaintiff also sued the defendant driver and others.
In his decision, Hodge referenced a 2013 ruling from a New Jersey appeals court in the case of Kubert v. Best, No. A-1128-12T4 (N.J. Super. Ct. 2013), that appears to be the first case in the country to allow for a such a cause of action to proceed against texters who distract drivers by sending text messages to the driver.

The court in Kubert more specifically held that the sender of a text message may be held liable in New Jersey for injuries caused by the distracted driving of the text recipient if the injured party plaintiff can prove that the sender of the text knew, or had special reason to know, that the recipient was driving, would view the text while driving, and would be distracted by it.

While the Kubert court held that such a claim is legally cognizable, it did affirm the trial court's granting of summary judgment to the defendant after finding that the plaintiff had not shown sufficient evidence to allow that claim to proceed to the jury. More specifically, as the content of the text messages were not provided to the court, there was no evidence presented that the defendant's text sender knew that the defendant driver was driving at the time the two were texting one another.
In the Lawrence County case of Gallatin, the complaint alleged that the defendant driver was traveling behind the plaintiff's decedent while texting on her phone in violation of Section 3316 of the Motor Vehicle Code. The complaint alleges that the defendant driver was thereby distracted and inattentive at the time of the accident.

The complaint in Gallatin also named the two individuals who were allegedly texting the defendant driver at the time of the accident. In this regard, the plaintiff alleged in the complaint that the defendant driver was "reading and/or responding to a text message" sent by the texting defendants when the fatal rear-end accident occurred.

One of the texting defendants filed preliminary objections based upon Pennsylvania Rule of Civil Procedure 1028(a)(4), asserting that the claims were insufficient as a matter of law. That defendant more specifically asserted that there is no statute or case law imposing a duty of liability on a person who merely sends a text message to a person operating a vehicle.

While the court in Gallatin glossed over the fact-pleading requirements of the Rules of Civil Procedure and allowed the claim to proceed beyond the preliminary objections stage, the court also noted that, for liability to attach against a text-sending defendant, that individual must know or have reason to know at the time of the accident that the person they are texting is driving, will view the text, and will thereby be distracted by the text.

Negligence In the Air

In other words, the Gallatin case liberally allows a claim for negligence to proceed when there is simply negligence literally in the air in the form of text message signals flying back and forth between the text sender and the driver.

Currently, there is no Pennsylvania statute circumscribing when text messages can be sent by one person to another. Such a law would likely be ruled an unconstitutional limitation on one's right to freely communicate with others in any event. Nor is there any common-law basis to extend liability for causing a car accident to a third person not even present at the scene.

In his famous Palsgraf decision, Justice Benjamin N. Cardozo wrote that "the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one's neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform."

Similarly with respect to text messaging, the notion that one should not send a text message to another person without first determining that the recipient is not driving is too extravagant a notion to expect human nature to conform to the idea. Rather, to paraphrase Cardozo, the wrongdoer as to the injured party plaintiff should only be the driver who chooses to look down and read the text while driving, not the sender of the text who sends it without suspicion of any danger.

A slippery slope

This Kubert and Gallatin decisions create a slippery slope and stretches the malleable concepts of duties owed and foreseeability of injury in negligence actions to unrecognizable bounds.

While the Gallatin and Kubert decision note a standard whereby liability attaches if the text sender knew, or should have known, that the recipient was driving, would read the text, and would thereby be distracted, it is likely that trial courts, as did the Gallatin court, would err on the side of caution in the face of demurrers and allow such claims to proceed beyond the preliminary objections stage and into discovery even if facts were not specifically pleaded in the complaint to meet this standard.

The increasing costs of having to defend against such claims through discovery to a motion for summary judgment would be passed onto consumers in the form of increased auto insurance premiums. In the end, allowing such claims to proceed against texters goes against the recognized public policy and legislative concern in Pennsylvania in favor of efforts in the law to decrease the spiraling consumer costs of automobile insurance.
These increasing costs of litigation may expand further if the slippery slope created by the Kubert and Gallatin slips into other additional classes of potential auto accident defendants as a result of these decisions.

For example, if the sender of a text could be sued in this scenario, is the next slip down the slope to allow telecommunications companies to also be sued for allowing us to all have the ability to send text messages? The question would become, but for the telecommunications company creating the ability for text messages to be sent, would the plaintiff have been injured? Perhaps Verizon could change their motto to, "Can you sue me now? Can you sue me now?"
How long then until a lawsuit is allowed against the manufacturers of GPS devices on the basis that the voice instructions made the driver look at the device at which point there was an accident?
Why not then could even a front-seat passenger of the defendant's vehicle be sued simply because he or she was talking to the thereby distracted defendant driver who looked over at the passenger at the time of an accident?

While not the barometer of negligence, running any of these potential lawsuit defendant scenarios across a lay person, i.e. the reasonable person, would likely elicit the response, "that's just ridiculous." The notion that a sender of a text could be held liable to a person injured in a car accident because the driver chose to read the text while driving falls within these types of untenable lawsuit claims.

Simply put, where can the line of liability be drawn in a concrete and workable fashion in negligence actions if outlier decisions like Kubert and Gallatin are allowed to stand? The orbit of liability in car accident cases should circle the negligent driver who took his or her eyes off the road by looking over at a passenger, by looking at a GPS device, or by making the poor choice of picking up a cellphone and looking down to read a text. •

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