By now, we are all aware that texting and driving is very dangerous. If you are caught texting and driving in Kansas you could (and should) be ticketed. If you are texting and driving and cause an accident that injures someone you are highly likely to be sued.
There is a new wrinkle in this scenario. A recent decision extends liability to individuals outside the car in certain circumstances. In Kubert v. Best, a New Jersey appellate court was asked to determine “as a matter of civil common law, whether one who is texting from a remote location from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.”
The answer? Maybe. The Kubert Court ruled that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”
If You are Knowingly Texting a Driver, it Could Make You Liable
In other words, if you have reason to know that someone is driving and you send them a text, you are liable for anything that happens when the driver becomes distracted and hurts someone. You can read the case by clicking on the link above. The decision is well-reasoned and it is probable that other states will adopt it.
What if such an accident happens in Kansas? There are a number of things to consider:
First, in Kansas, it is likely that the driver of the automobile would be at least 50% at fault for viewing the text. Under our comparative fault laws that would bar the driver from recovering damages. So, in most cases, the driver would probably not have a claim but it would depend on the facts. Passengers in the vehicle would have valid claims against both the driver and the person sending the text. Other motorists or pedestrians injured as a result of the distracted driver would also have claims against both.
Second, is it wise for anyone to pursue a claim against the person sending the text? Again, it would depend on the particular circumstances but the answer is “probably not”. It is highly unlikely that the person sending the text would have insurance to cover his or her negligence. Our comparative fault laws would again come into play. If the person sending the text is found to be at fault it might actually result in less compensation for the victims. If fault is split between the texter and the driver, and the texter has no insurance or assets, then you hurt your case. Making a claim against the person sending the text only makes senes if the texter has sufficient assets to pay a judgment or contribute to a settlement. Otherwise, it is probably a mistake (and potentially a very expensive one) to pursue such a claim.
If you have been injured in an accident and a cell phone was in use at the time, please feel free to give our office a call. An attorney well-versed in Kansas automobile, motorcycle and tractor-trailer accidents would be happy to discuss your case with you. It is important that you are advised of all your options. We offer free consultations and would be happy to speak with you so don’t hesitate to call us at (316) 636-9500.