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View Diary: Text someone who's driving, and you might get sued: a torts lesson (159 comments)

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  •  Maybe. Also maybe social norms will change (3+ / 0-)

    so that people don't text while driving and get their friends sued. If being a good friend means not texting while driving, that seems like a good thing to me.

    Code Monkey like freedom / Code Monkey like peace and justice too
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    Formerly known as Jyrinx.

    by Code Monkey on Mon Sep 02, 2013 at 07:25:56 PM PDT

    [ Parent ]

    •  But under this standard (3+ / 0-)
      Recommended by:
      DarkLadyNyara, 417els, Adam B

      The driver doesn't have to text back. They only have to read it. That means, under this law, anyone who sends a text to a person involved in a crash that is received in the time leading up to an accident can be named as a defendant. It then becomes incumbent on the person named as a defendant to get out of the lawsuit. It also gives an out to the text-receiving driver to say, it wasn't me, but if it was, he or she distracted me and add all these folks as third-party defendants for the purpose of apportioning liability.

      While its all well and good to try and deter folks from texting to people while driving if they know the person is driving, for limitations purposes, most defendants and plaintiffs will automatically add everyone who could plausibly be a plaintiff and then use the discovery process to weed who should/should not be there. But each new defendant now needs an attorney, and those don't come cheap. Who is going to pay for that?

      Let's put this another way. Say you send someone a text and you have no idea where they are or what they are doing. And say the person you text happens to be driving and, shortly after your text is a received, gets in a wreck. You had no clue they were driving OR whether they would look at the text, but guess what, you're a defendant in the lawsuit, you may well need to be retain an attorney and could be summoned for a deposition while the plaintiff tries to suss out what you knew and when. And you run the risk of that happening every single time you send a text. Every time.

      Sure, under this test, you won't be held liable, but the average personal injury attorney will gladly slap your name in as a defendant and try and roll the dice on your being a legit defendant. And at that point, while the plaintiff has to prove you are a legit defendant, its not exactly free for you to get out of the case.

      What this ruling does is give attorneys carte blanche to conduct a fishing expedition into each and every person who texted the driver in the time leading up to the crash to see what they knew. Its well intentioned, but the test for actually proving liability is almost insurmountable, and will thus virtually never be met. All this will do will run court costs, which will ultimately be paid initially by insurance companies, but will ultimately be passed on to consumers like you and me. The only ones who will profit from this in almost every case will be the lawyers on both sides (and I say this AS a lawyer). Because the test is SO hard to meet, virtually none of the victims in these cases will benefit from this new law. It will just draw things out, run up their costs, and slow down their ultimate recovery.

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