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Texting your friend who kills someone: Are you liable?May 4, 2018

Vega v Crane, 2018 NY Slip Op 03262 (4th Dept, 2018)

(1) “There is, however, a significant distinction between the distracting passenger and the remote sender of text messages. Unlike the passenger, the remote sender is not present in the vehicle and thus “lacks the first-hand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver” (Kubert v Best, 432 NJ Super 495, 521, 75 A3d 1214, 1230 [Super Ct, App Div 2013] [Espinosa, J., concurring]). The driver cannot prevent the passenger, who is actually present inside the vehicle, from creating a distraction by suddenly and unnecessarily calling out at an imprudent moment. The same driver, on the other hand, has complete control over whether to allow the conduct of the remote sender to create a distraction. Although the remote sender has the ability to refrain from sending the driver a text message, he or she is powerless to compel the driver to read such a text message at an imprudent moment, and has no duty to prevent the driver from doing so.”

(2) “If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities. A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action. Each of the foregoing examples is a communication directed specifically at passing motorists and intended to divert their attention from the highway.”

(3) “We conclude that defendant owed no duty to plaintiff to refrain from the conduct alleged, and therefore that she cannot be held liable for such conduct. Accordingly, we conclude that the order should be affirmed.”

I think this is a really interesting issue.  What if you give a gun to someone who you know will shoot it?  Are you liable for negligent entrustment?  If you serve alcohol to a minor and they get into an accident, you’re liable.  Yes, there is no statute or common law principle here, and the negligent entrustment analogy is a bit outside the bounds of this discussion.  But I do not see this debate ending here in 4th Department precedent.

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