At least 90% of American adults own a cell phone[1], the vast majority of which are smartphones[2]. Arguably, these devices have had a more profound effect on the way we live and work than any other invention in history. And what’s not to love? Instantaneous access to information including global news and market data, endless music, the ability to post photos across the world, and of course, the unrestricted freedom to communicate verbally or by text with virtually anyone, anywhere, any time.  However, as a growing body of case law is revealing, these ubiquitous machines can come with unforeseeable and catastrophic legal consequences. In some cases, timing is everything. Have you ever texted someone while they were driving? Of course you have. But, did you also know that, for example, you can be liable as an accomplice to battery or manslaughter if you text a driver who then causes a fatal accident? It’s a sobering thought that just one text can have such a huge impact on your life, but it can.

Text-related claims against third parties have been allowed by courts in several jurisdictions, and it’s unnerving to think that many more are very likely to follow suit.[3] For example, in March 2016, Pennsylvania Judge John Hodge ruled that two men accused of texting a driver at or around the same time of a fatal automobile accident were properly sued in the case.[4] [5] This ruling followed an August 2013 New Jersey appellate ruling, which held that “a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident.”[6]

There is some comfort in the fact that both Judge Hodge and the New Jersey appellate court, mentioned above, imposed a knowledge requirement for a texter in such a situation to be liable. Specifically, the New Jersey court concluded 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.”[7]

Generally, “mens rea” (Latin for "guilty mind") allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit it. Here, the imposition of guilt or legal liability (whether criminal or civil) for sending a seemingly innocent text to a driver is a jarring possibility.

In sum, just one ill-timed text is all it can take to drag you into a lawsuit, force you to hire a lawyer, and spend money, time, and energy getting beat up in court—all over the issue of whether or not you knew or should have known the person you texted was driving at the time the text was sent. At the end of the day, the message is clear, be very careful who, what, when and where you text.

— By Keobopha Keopong Esq., Barnes Law

Keo Keopong is an associate attorney with Barnes Law, and is licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.









[7] Id.