The dismissal of the lawsuit turned on the question of whether the sender of the text knew that the recipient was driving at the time. (iStock)
Reporter

A Pennsylvania court has dismissed a lawsuit against a man who was texting a driver involved in a fatal crash. The move came after testimony in the civil case failed to show that he knew the text’s intended recipient was driving at the time.

The decision  puts to rest, at least in this case, the theory that a person who sends a text to a driver of a moving vehicle could also be held liable in an ensuing crash.

The lawsuit arose from a May 2013 crash that killed Daniel E. Gallatin. Gallatin died when his motorcycle was struck by an SUV in Hickory Township, which is about an hour north of Pittsburgh. He had slowed to turn when the SUV hit him. Police said the SUV’s driver, Laura Gargiulo, was distracted by texting.

In June 2015, Gargiulo, 47, pleaded guilty to involuntary manslaughter, texting while driving and careless driving, the New Castle News reported. The court  sentenced her to 60 days in jail and 60 days of incarceration with work release, followed by house arrest and probation, the paper says. The court also ordered that she visit schools to talk about the dangers of distracted driving. Gallatin’s family filed a lawsuit against Gargiulo and also sued Timothy J. Fend, the person who had texted her.

On Friday, however, an order was entered in Lawrence County Court of Common Pleas to dismiss the case against Fend. His testimony in depositions undercut a chief premise of the legal theory, namely that the person sending the text knew or should have known that the recipient was driving, said Fend’s attorney, Michael E. Lang.

“It became painfully obvious that there was no way in hell that Fend knew where Gargiulo was or what she was doing when he texted her,” Lang said. “There was no way to prove their theory. It was all theory.”

But Lang also said he did not think the principle of extended liability would be likely to survive a court test unless it were an egregious case in which the person sending knew the person was driving and continued texting anyway.

“It might take more than that,”  Lang said. “That person who sent you that text didn’t force your hand to that phone and make you lift it up.”

An appeals court in New Jersey opened the door to just such a theory in 2013. The case involved another motorcycle crash, in which two riders were severely injured; the two were sideswiped by a truck whose driver had just received a text from a friend.

In its review of that case, the Appellate Division found that there was not enough evidence to show that the person who sent the text had known its recipient was driving at the time. But the court also said that people have a duty not to text a person who is driving. The court said a sender could be held liable for texting a driver before a crash if the sender knew the recipient was driving or had reason to think the person would view the text while driving. The New Jersey case, Kubert v. Best, was cited by Gallatin’s widow in the lawsuit against Garguilo.

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