The age of technology has brought about some interesting questions regarding liability. Although people may not have a physical influence at the scene of a crime or accident, their electronic presence could impact one party’s ability to perform certain duties. Although it is not yet a criminal act to text someone who is driving, more people are beginning to question the liability of texters due to recent law suits.
The Case of the New Jersey Texter
What Does the Law Say?
The driver of a vehicle is responsible for operating under a “duty of reasonable care.” This means drivers must take an ordinary amount of care to ensure the safety of passengers and others on the road. If the prosecution proves a driver breached the duty of care, and that breach resulted in harm or injury to others, the driver is guilty of negligence. IT’s extremely important to work with a car accident lawyer to fully understand the laws and your rights.
In some states, the passenger of a vehicle must also act with reasonable care. If the passenger doesn’t take reasonable care, he or she could bear the guilt in an accident. It usually takes a great deal of investigation to prove liability in such a case. If a non-driver’s text directly affected the driver’s ability to act with reasonable care, the texter could be found guilty if a prosecutor proves he or she was aware the driver was operating a vehicle at the time. Because the texter is not physically in the vehicle, liability is even more difficult to prove, but it’s not impossible.
Elements of Negligence
For the courts to find someone guilty of negligence, the prosecution must prove all elements of negligence. First, the prosecution must establish a duty of care based on the relationship between the defendant and plaintiff. All drivers assume a duty of care when they operate a vehicle, and it extends to those with direct impact over the driver’s behavior. Once the prosecutor establishes the texter has a duty of care, he or she must prove the texter broke that duty by sending the text.
If the prosecutor can prove a breach of duty, there also needs to be evidence that the breach caused the harm or injury. The law calls this a “cause in fact” or “but-for” causation. If the defendant could have reasonably foreseen the resulting harm, even if the actions did not directly impact the damages (such as texting from a different location), his or her actions fall under proximate cause, and the courts can still apply liability. Lastly, the law must legally recognize the harm, known as damages, resulting from the defendant’s actions to prove liability in a negligence case.
How to Avoid Liability
Even though it can be difficult to prove liability of a texter in a text-related accident, all involved parties should be careful. If you suspect the person you are texting might be on the road, don’t send the text. It is better to be overly cautious than to unwittingly cause an accident. Additionally, if you are the driver of a vehicle, don’t let new messages distract you from your responsibility to drive with care. As tempting as it may be, checking your phone while driving could cause harm to you, those around you and possibly your message sender.
In the case that the driver is wholly at fault, the pedestrian will easily recover damages from the driver’s insurance policy for economic and general damages. The main hassle in these circumstances is fighting with an insurance company to raise its lowball offers.
