NEGLIGENCE IS IN THE AIR: Lawrence County Judge Allows Case to Proceed Against Persons Who Texted Driver Involved in Accident While Using Cell Phone

In the Lawrence County case of Gallatin v. Gargiulo, No. 10401 of 2015, C.A. (C.P. Lawrence Co. March 9, 2016 Hodge, J.), Judge John W. Hodge, in an apparent case of first impression in Pennsylvania, overruled Preliminary Objections and allowed negligence and wrongful-death claims to proceed, in part, against two men who were texting a driver as she crashed into a motorcyclist in a fatal accident.

In his decision, Judge Hodge referenced a 2013 ruling from a New Jersey appeals court in the case of Kubert v. Best which appears to have been the first case in the United States to allow a cause of action against those who knowingly distract drivers by sending text messages. 

That New Jersey decision was mocked as being too expansive on the issue of causation in a Tort Talk post that can be read HERE (and which contains a Link to the New Jersey decision).

In 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 also named the two individuals who were 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 accident occurred.  The Plaintiff also averred that the texting Defendant knew or should have known that the Defendant driver was driving at the time and that the texting Defendant knew or should have known that the Defendant driver would read the text sent while driving.

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 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 and will view the text.

Anyone wishing to review the Lawrence County decision in Gallatin v. Gargiulo may click this LINK.

Source:  “Texting a Distracted Driver Could Now Bring Liability” by Ben Seal, Pennsylvania Law Weekly (April 29, 2016).


UPDATE:  The case against the sender of the text was later dismissed by Stipulation by the Plaintiff shortly before a Motion for Summary Judgment on the issue was to be argued to the court.  Defense counsel was prepared to argue that the Plaintiff failed to produce facts that the sender of the text knew that the recipient was driving at the time the text was sent.  See the updated Tort Talk post HERE.