Before you hit send on that next text, you might want to make sure the person you’re sending it to isn’t driving.
Under a novel legal theory on distracted driving moving through the courts, a person who texts a driver could be held liable for a crash, too.
The idea that the sender is no less responsible than the driver first surfaced in New Jersey. Now it’s being tested in a lawsuit arising from a fatal crash in western Pennsylvania that prompted lawmakers to impose stricter penalties for distracted driving. Gov. Tom Wolf (D) signed a measure into law last week that could add five years behind bars for a driver involved in a fatal crash who was texting and driving.
The law was passed in memory of Daniel E. Gallatin, a volunteer firefighter who was killed in a motorcycle crash in May 2013 in Hickory Township, about an hour north of Pittsburgh. In a lawsuit, Gallatin’s family alleges that the driver who struck him had been distracted by a text. The family also sued the person who texted her.
A Pennsylvania judge has allowed that legal theory go forward against the sender. And that seems like a stretch — no matter how ubiquitous or dangerous distracted driving is, as Gallatin’s crash shows.
Gallatin, 68, left his daughter’s house on his motorcycle and was slowing down to make a right turn when an SUV slammed into him from behind, according to court documents and media accounts. The SUV’s driver, Laura E. Gargiulo, 46, was allegedly distracted by texting. Police, after obtaining a search warrant, found an opened text message on her phone corresponding with the time of the crash, the Associated Press reported.
In a lawsuit filed in the Lawrence County Court of Common Pleas, Gallatin’s heirs sued Gargiulo; her husband, Joseph; and their landscaping firm, because the SUV belonged to their business. The lawsuit also named Timothy J. Fend, an employee with the landscaping business who had sent the text to Laura Gargiulo.
The lawsuit argues Fend should also be held responsible for the accident because he knew or should have known that Laura Gargiulo was driving when he texted her, and thus he contributed to her negligence.
Fend’s attorney, Michael E. Lang, dismisses such reasoning as illogical. His client doesn’t dispute sending the text. But Fend also had no way of knowing whether Laura Gargiulo was driving when he sent it, Lang said. And it’s not clear that Gargiulo even viewed the text while was she was driving, Lang said. He said all anyone knows is that the message was opened about the time of the crash.
But even if Laura Gargiulo did read the text while driving, then she alone is responsible for what happened next, Lang said.
“Our position is whether someone receives a phone call or a text message, it’s up to them to decide whether to read that text message or answer that phone call,” Lang said. He said he believes the attempt to draw Fend into the lawsuit is little more than a bid by the plaintiffs to find deeper pockets.
To back up their legal theory, however, Gallatin’s heirs turned to New Jersey, whose courts have a history of identifying and setting legal trends. That’s especially true in regard to decisions that widened the circle of responsibility for drunk driving. In 1959, for example, New Jersey courts found that a tavern owner could be held liable for serving a minor who caused a crash. In 1984, the New Jersey Supreme Court expanded this theory of responsibility to include the host of any social gathering who plies a guest with too much alcohol before the guest drives off. It’s along these lines that New Jersey courts, in Kubert v. Best, ruled in 2013 that the sender of a text could be held liable in a crash in addition to the driver who received it.
The Kubert case is cited by the Gallatin lawsuit in Pennsylvania, and it too involved a motorcycle crash: David and Linda Kubert were riding a motorcycle in Mine Hill Township in September when a teenager in a pickup truck sideswiped them, severely injuring both. Evidence later showed that the pickup’s driver, Kyle Best, then 18, had been texting a friend seconds before he called 911 to report the crash, the opinion says.
Although the Kuberts settled their lawsuit against Best, they also sought to hold his friend, Shannon Colonna, responsible for texting with him while he was on the road. The court record established that the pair had been texting each other all day, as they often did.
“I’m a young teenager. That’s what we do,” Colonna testified.
The trial court found no legal basis to hold the sender of a text responsible for a crash and so dismissed the case against Colonna.
But New Jersey’s Appellate Division disagreed. In its August 2013 opinion, the appeals court found that although there wasn’t enough evidence to show that Colonna had known her friend was driving when she texted him, the court also held that people have a duty not to text a person who’s driving. The court held that the sender could be held liable for texting a driver before a crash if they knew the person was driving or had reason to believe the person would view the text while driving.
Fend’s attorney doesn’t think much of New Jersey’s theory.
“From a practical matter, it would open up Pandora’s box,” Lang said in an interview this week. “Anybody who ever makes a phone call or texts would have to make sure that that that [other] person wasn’t driving. If I was out of town on business, it would mean my wife couldn’t send me a text until I was back at the hotel.”
He predicted his client will ultimately prevail. Both sides are set for oral argument later this month.
LeeAnn A. Fulena, who was listed as the Gargiulos’ attorney, did not return telephone and email messages seeking comment. Douglas J. Olcott, who is representing the Gallatin estate, also did not reply to messages.
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