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David and Linda Kubert
David and Linda Kubert (David Gard/New Jersey Local News Service)
A New Jersey court is now the first in the nation to answer this question, and it's a doozy: if you text (or email) someone who you know is driving and who will read it while driving, and that person's distracted driving causes an accident, are you also responsible for contributing some share to any money damage award?

And in Kubert v Best, the New Jersey Superior Court, Appellate Division says yes, you can be held liable.

The facts here are simple and tragic: Motorcycling husband and wife Linda and David Kubert were grievously injured by an 18-year-old driver, Lyle Best, who was texting while driving and crossed the center-line of the road in his pickup truck. Both required left leg amputations. Claims against Best settled. The Kuberts also wanted to sue the driver's 17-year-old friend, Shannon Colonna, who was texting Best much of the day, including a text sent immediately before the accident. As the Court summarized,

Best's cell phone record showed that he and Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half hour, non-consecutive time-span they were in telephone contact on the day of the accident.

The telephone record also showed that, in a period of less than twelve hours on that day, Best had sent or received 180 text messages. In her deposition, Colonna acknowledged that it was her habit also to text more than 100 times per day. She said: "I'm a young teenager. That's what we do." She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not. She thought it was "weird" that plaintiffs' attorney was trying to pin her down on whether she knew that Best was driving when she texted him.

Indeed, based on cell phone records, it was established that Best last texted Colonna at 5:48:58 pm, responding to a text she sent 25 seconds earlier, and just 17 seconds later Best called 911 to report the accident. "Those seconds had to include Best's stopping his vehicle, observing the injuries to the Kuberts, and dialing 911," the Court notes. "It appears, therefore, that Best collided with the Kuberts' motorcycle immediately after sending a text at 5:48:58."

And while the Court found that there wasn't sufficient evidence in this case to find Colonna liable, because there was no evidence that she knew he was driving (and reading-and-texting-while-driving), other such texters could be forced to pay. To find out why, how, and when, keep reading.

Its analysis begins with a basic principle from the Restatement:

A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C.
And cutting through a lot of both mumbo-jumbo and argle-bargle, here's what the Court concludes:
We hold 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....

Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.

Having considered the competing arguments of the parties, we also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving. We conclude that additional proofs are necessary to establish the sender's liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle....

It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver's view of the road, for example, by suddenly holding a piece of paper in front of the driver's face and urging the driver to look at what is written or depicted on the paper. The same can be said if a passenger were to hold a cell phone with a text message or a picture in front of the driver's eyes. Such distracting conduct would be direct, independent negligence of the passenger, not aiding and abetting of the driver's negligent conduct.

And if you can be liable for directly causing the distraction, why not indirectly too?
The more relevant question is whether a passenger can be liable not for actually obstructing the driver's view but only for urging the driver to take his eyes off the road and to look at a distracting object. We think the answer is yes, but only if the passenger's conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger's actions.
And if that's the case, why should you have to be in the car at all to be liable?
It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text.

Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.

If there's an appeal, or other developments in this area, I'll let you know.

Originally posted to Adam B on Fri Aug 30, 2013 at 01:51 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Seriously, friends. (100+ / 0-)

    Don't text and drive. Via the National Safety Council:

    23 percent of all crashes each year involve cell phone use, resulting in 1.3 million crashes nationally.

    Talking on a cell phone while driving makes you four times as likely to crash, and texting while driving increases your chances of a crash by up to 8 to 23 times. While a growing number of drivers are turning to hands-free devices, studies show hands-free devices provide no safety benefit. It’s the conversation, not the device, that creates the danger.

    •  Yeah, it's worse than being alcohol impaired (4+ / 0-)

      but where is MATT?   (Mothers Against Thoughtless Texting)

    •  So (0+ / 0-)

      Let's make it illegal for a mom to say to her kids, "If you don't stop this right now, I'm stopping the car."  And if she gets into an accident while saying that, let's make the kids liable to the injured motorcyclist.

      This aggression will not stand, man.

      by kaleidescope on Fri Aug 30, 2013 at 06:35:30 PM PDT

      [ Parent ]

      •  The kids don't have different $ from mom ... (1+ / 0-)
        Recommended by:
        VClib

        ... so it doesn't make a difference.

        •  The Point (1+ / 0-)
          Recommended by:
          wilderness voice

          If the research shows that it is the conversation -- rather than holding a device in your hand -- that causes the distraction, then maybe a passenger conversing with a driver who has an accident should be liable for the distraction.  And driving with kids in the car should be per se negligence.  And just as it's illegal to talk on a cell phone while driving, perhaps it should also be a violation of the Vehicle Code to drive with kids in the car.  Or people who talk to their kids while they're driving should be guilty of felony child endangerment.

          This aggression will not stand, man.

          by kaleidescope on Fri Aug 30, 2013 at 09:17:27 PM PDT

          [ Parent ]

          •  and as it happens (0+ / 0-)

            research does show exactly that: http://www.sciencenews.org/...
            although the level of impact is not as severe as texting

            •  Talking on a phone has generally been found to be (3+ / 0-)
              Recommended by:
              PsychoSavannah, sawgrass727, 417els

              worse than talking to a passenger, according to the research.   From your link:

              It’s all part of what scientists call cognitive load. “When we communicate with a person we can’t see, we create a mental image of them,” says sociologist Clifford Nass of Stanford University. The task occupies more available brain power than passively listening to a radio, which requires no interaction.

              The more remote the conversation, the more taxing it is. Nass says he realized this after his team told drivers in a test simulation that a voice piped into the simulator was coming from nearby in some cases and from faraway Chicago in others. Although the voice was identical, “people drove significantly worse when they thought it was from Chicago,” he says. The drivers had to fill in more context.

              That same article also has a contradictory passage:
              Since then, Strayer and his colleagues have fine-tuned understanding of just how incapacitated drivers are when on the phone. In June, Strayer’s team described monitoring 32 drivers in city traffic and asking them to listen to a radio, have a conversation with a passenger, use a hand-held phone, use a hands-free phone or operate voice-to-text technology. Compared with driving free of any distractions, radio was the least problematic, while voice-to-text was the most. The three conversations were about equally distracting and led to substantially degraded driving, marked by less scanning for potential hazards, monitoring mirrors less regularly and showing poor surveillance at pedestrian crosswalks and four-way stops. This effect occurred even though the tasks didn’t require the drivers to take their eyes off the road.
          •  The primary difference (0+ / 0-)

            is that the passenger is present in the same car as the driver and therefore is, or should be, aware of the traffic and road conditions that the driver is facing. That means that he would normally adjust the pace of the conversation to avoid distractions, and he would be doing this unconsciously, based on cues that would not be available to a party not present in the car.

            This is, of course, less the case with little kids.

            Personally, as a physician, I would be very concerned at a child becoming febrile after having ingested bleach or had it shot up his rectum—Orac (Respectful Insolence)

            by ebohlman on Sat Aug 31, 2013 at 03:59:15 PM PDT

            [ Parent ]

          •  or the general public could focus on driving (1+ / 0-)
            Recommended by:
            pitbullgirl65

            instead of trying to multitask all the time.  I believe we have shifted our driving habits to what they are now, distracted, and not just by phones.

    •  Interesting...definitel something to be sorted out (2+ / 0-)
      Recommended by:
      wilderness voice, ebohlman

      Personally, I don't think there should be liability in such situations...it's a bit of a stretch for me. The responsibility lies with the driver, IMO, even if you were sending texts with the expectation that he/she would respond to them while driving.

      On the other hand, the potential consequences of such behaviour is certainly foreseeable, so I very much understand the argument.  Taking it a step further, what if it's an employer doing the texting to an employee who's driving, demanding an immediate answer. Would it matter if driving was a key part of the employee's duties? What about a client demanding an immediate answer to a question? What if you don't text, but call someone who is driving, and you know they are driving? Does it matter if texting, or talking, whilst driving is illegal in that state?

      I guess I view it as a public policy thing more than anything else. People should definitely not be texting whilst driving, and it drives me crazy when I see it, but I'm not comfortable with holding the person who's not driving responsible...even if texting a driver is pretty stupid.  

      Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

      by Pi Li on Fri Aug 30, 2013 at 07:12:48 PM PDT

      [ Parent ]

      •  There's definitely precedent for shared (0+ / 0-)

        liability in the case of providing alcohol to someone whom the provider can reasonably foresee to drive under the influence of it, though that's partially based on the presence of specific statutes dealing with that case.

        Personally, as a physician, I would be very concerned at a child becoming febrile after having ingested bleach or had it shot up his rectum—Orac (Respectful Insolence)

        by ebohlman on Sat Aug 31, 2013 at 04:04:27 PM PDT

        [ Parent ]

      •  Texting a driver is not pretty stupid..... (2+ / 0-)
        Recommended by:
        417els, jncca

        Texting can be, like email, a non-realtime interaction. I send a text when I can and the receiver reads it when they're able. Hence the parsing of the decision - I have to KNOW that the receiver will read it while driving and be distracted. How that can be proven I have no idea, unless by the content - "I know you're driving but answer me right now! I don't care how dangerous it is!" might qualify.

    •  Ridiculous (0+ / 0-)

      It’s the conversation, not the device, that creates the danger.
      ----------------------------------------------

      So we cant engage in conversations while driving now?  Oh brother, this is madness.

      So is being sued for talking to others in the car coming next? This is a ridiculous ruling that will be thrown out on appeal.

    •  Then why don't people crash (0+ / 0-)

      when they're talking in the car with another person in the car???? I don't think their info is based in reality.

      Soldiers and veterans are the reason we are able to argue about issues and to live in a free country. Let's not let their blood be wasted. Remember all gave some and some gave all. Honor their sacrifices.

      by Somegaveall on Tue Sep 03, 2013 at 03:19:15 PM PDT

      [ Parent ]

  •  I've had several near misses (10+ / 0-)

    on account of other drivers not paying attention, while holding a phone up to their head. In these cases, voice phone rather than texting, but they seem to be equally dangerous.

    Personally I would like to see penalties for phoning/texting while driving elevated significantly. Make it hurt financially.

    My partner and I text each other frequently thoughout the day; I don't do that, however, during times when I think/know he is driving.

    Marry the one you love, not the one a bigot says you're allowed to love.

    by lotac on Fri Aug 30, 2013 at 02:01:57 PM PDT

    •  here also (4+ / 0-)
      Recommended by:
      lotac, magnetics, Eyesbright, Wee Mama

      I live in nj... and work in a college city sprawled out across the city. They drive a lot while texting.  We all dread next week when they are back and the horrendous accidents start up again.Every year.  They should lose their license for a year if busted . I've had it.

      "My Mom is my hero, my angel and I revere her to no end.." Christin, July 6, 2013

      by Christin on Fri Aug 30, 2013 at 02:53:52 PM PDT

      [ Parent ]

  •  I'm not sure how one could reasonably (5+ / 0-)

    anticipate whether or not someone at the other end of a text would read it while driving or not.

    That said, I like the idea of telling my young employees that if they text me instead of calling me when I tell them to call because I am driving, that they could get in trouble with a lawsuit for doing that.  I am all hands free for phone, but never eyes free for texts or emails when I drive.

    There are a whole bunch of us who are around and above my age in my industry who are going nuts with young employees who insist on texting or emailing rather than actually phoning people.  They assume that everyone in the world sits around staring at their mobile devices like they do.

  •  When I'm driving... (8+ / 0-)

    my phone is silent and generally is in my pocket where I can't see it (unless it needs charging; in which case I try to keep it face down). I can't think of ANY reason to respond to a text or to answer a phone call while I'm driving. None.

    If I'm waiting for a call or a message and it comes in and it's that g.d. important, I can pull over first and then respond. That's what voicemail is for. That's why text messages get stored and flagged. So we can respond to them LATER.

    People have come to view any sort of electronic communication as a demand for an instantaneous response. There's something seriously wrong with that kind of thinking.

    I grew up in the era before answering machines, voicemail and call waiting (oh and cell phones; can't forget those).  Somehow life went on. If you got a busy signal or no answer, you called back later. If you were out and couldn't call someone you called them when you could get to a phone. Yes, cellphones provide a convenience; there's no doubt about that. But I have a real problem when they go from being a convenience to being a tracking device/ball-and-chain.

    On another note, I suppose it's a good thing the court included this:

    Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.
    Otherwise the senders of text-based Amber alerts (which I think are actually police agencies) would be considered liable in case of an accident.
  •  I don't text and drive but (3+ / 0-)
    Recommended by:
    Avilyn, marina, magnetics

    I have friends not young ones either who insist they can multi-task and "text safety" I don't know WTF that actually means but its bullshit. Nobody's life is so intensive that they need to send a text while operating a vehicle.

    Although as I was walking out of work the other morning ( I work nights at a hospital ) I realized every single person walking in was either texting or talking on their cell. Everybody. I am not one of those "technology get off my lawn types" I have a smartphone but I really think people are not getting the message on this and maybe when we allow lawsuits that involved targeting people indirectly involved in the accidents people might pay attention. Or who knows they will just send texts to one another saying texting and driving is dangerous... while they are driving.

  •  Really? (1+ / 0-)
    Recommended by:
    Johnny Q
    if you text (or email) someone who you know is driving and who will read it while driving
    Good luck with that case Counselor.
    the Court found that there wasn't sufficient evidence in this case to find Colonna liable, because there was no evidence that she knew he was driving
    So- no tort.

    Remind me not to hire you.

    •  In New Jersey, it's a case now. (8+ / 0-)

      And why not try elsewhere?

      So you when you sue the driver, you do discovery to find out who was on the other side of communications, then you take depositions and obtain the communications to determine if you can prove knowledge.  

      •  Probably wouldn't be hard to prove in a deposition (0+ / 0-)
        We hold 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....
        Simply ask if they have ever been in a car with the person and seen them look at a text. That would seem to be a reason to know that they would look at the text.

        Most of the people taking a hard line against us are firmly convinced that they are the last defenders of civilization... The last stronghold of mother, God, home and apple pie and they're full of shit! David Crosby, Journey Thru the Past.

        by Mike S on Fri Aug 30, 2013 at 05:59:14 PM PDT

        [ Parent ]

        •  But that wouldn't prove that the sender knew (1+ / 0-)
          Recommended by:
          DarkLadyNyara

          that the recipient was driving at the moment that the text was sent.

          Or another example: what if you knew the person was driving home from work during a very specific time frame, but for whatever reason a text that you had sent 2 hours earlier finally arrived?  Maybe they switched on their cell phone in the middle of the commute, and voila, that text from 2 hours ago shows up, gets read, and the accident happens.

          So it seems that the text sender must (a) know that the recipient is driving, (b) know that the recipient will read the text, (c) and send the text while the recipient is driving for any of this to have a chance of being proven.

      •  And don't forget the Insurance Companies (6+ / 0-)

        have their lawyers on the job as well. My wife deals with these kinds of liability issues for a living, and as I stated in my comment down thread the other day, from the Insurance angle they are all over this. It's the money, it drives their game. If a liability exists to pin on a third party they will locate it.

        The place was utterly dark—the oubliette, as I suppose, of their accursed convent.

        by bastrop on Mon Sep 02, 2013 at 06:55:39 PM PDT

        [ Parent ]

  •  I wonder if one ought be equally liable for... (5+ / 0-)
    Recommended by:
    Avilyn, harrije, marina, Eyesbright, TFinSF

    CALLING someone known to be driving?

    It is certainly a distraction.

    All it takes is a moment to do catastrophic damage with a motor vehicle.

    We don't have kids...but, if we did...I would go out of my way to find someone (and pay them) to invent a device that blocked all cell service (except 911) when the engine turned on in their car. No calls. No texts. If something is important enough...they could pull over and park.

    Does something like that exist already?

    Never argue with a fool, onlookers may not be able to tell the difference.

    by Kysen on Fri Aug 30, 2013 at 02:32:45 PM PDT

    •  Might be easier (5+ / 0-)
      Recommended by:
      Adam B, Kysen, bookwoman, Johnny Q, denise b

      to have a phone that automatically turns off when it's going at more than about 5 mph (8 km/h). Unfortunately there's probably no way to know if it's being used by the driver or a passenger, so you'd end up with a bunch of open container style BS.

      warning: snark above

      by NE2 on Fri Aug 30, 2013 at 02:41:36 PM PDT

      [ Parent ]

    •  There are apps for that (4+ / 0-)
      Recommended by:
      Kysen, grover, marina, Eyesbright

      AT&T has an app called DriveMode that you can set on your phone - it sets up an auto-reply text that you can customize, but the default is something like "I'm driving now but I'll respond when I'm in a safe spot."

      I think there is also a setting where you can have the app automatically come on when your phone's GPS indicates you're at driving speed, and it won't disengage until you've been at walking speed for a set amount of time.

      Granted, you have to want to discipline yourself against texting and driving for the app to be useful at all. And why not just do it through good old fashioned self-discipline if that's the case? (The big benefit of the app is the auto-reply, I guess.)

      Other than that, the industry vision is to have your car be a mobile device, so I don't see a complete involuntary mobile-disabling system working unless it is legislated. And you'll be up against two major industry lobbying groups (auto and telecom), so lots of luck.

      --

      As for me, I have trained friends and family that my phone is for my convenience, not theirs. They know not to expect immediate replies, so I'm free to be sensible about when and where I use my phone without any "answer guilt."

      ad astra per alia porci

      by harrije on Fri Aug 30, 2013 at 02:48:48 PM PDT

      [ Parent ]

    •  The driver does not have to pick up the call (2+ / 0-)
      Recommended by:
      Johnny Q, marina

      they can let it go to voice mail .
      I've requested that when I call and the person is driving
      that they do just that .
      If they pick up the call while they are driving ,
      I'd be upset if they pointed a finger at me .

      "please love deeply...openly and genuinely." A. H.

      by indycam on Fri Aug 30, 2013 at 03:34:22 PM PDT

      [ Parent ]

    •  Pulling off the road is often more dangerous (0+ / 0-)

      especially on high-speed roads. If it's a straight interstate with light traffic, I'd rather someone answered the call while driving than pull off to the side and risk getting hit from behind.

  •  This is nuts (8+ / 0-)

    Everyone knows not to text while driving even though some do it anyway. The driver and the driver only is responsible for his or her own actions. No one holds a gun to their head to make them read or reply.

    •  Right. The whole point of texting and email (1+ / 0-)
      Recommended by:
      wilderness voice

      is that you can pick up the message when you're free. Not in the middle of a meeting or when driving. Only the driver is responsible. He or she is the one who knows if they are driving or not. To make anyone else liable is ridiculous.

      Maybe the idea is to give attorneys another party to sue. It makes me more sympathetic to the whole Repub meme of tort reform.

      working for a world that works for everyone ...

      by USHomeopath on Fri Aug 30, 2013 at 04:08:59 PM PDT

      [ Parent ]

    •  But that's basically what the court said. (1+ / 0-)
      Recommended by:
      Miggles

      In practical terms, it seems like it'd be extremely difficult to actually prove a case under this test. You'd have to prove that whoever sent it would have particular reason to believe that the driver would be distracted by it.

      As for things being purely the responsibility of the driver, surely if someone puts a bag over the driver's head, it's not entirely the driver's fault if they crash?

      Code Monkey like freedom / Code Monkey like peace and justice too
      Code Monkey very nerdy man / With big warm fuzzy bleeding heart
      Code Monkey like you!

      Formerly known as Jyrinx.

      by Code Monkey on Mon Sep 02, 2013 at 06:37:19 PM PDT

      [ Parent ]

  •  My wife used to handle NJ (4+ / 0-)

    in her capacity as a Casualty and Liability QA Auditor for a major Ins. company. She was just telling me about this case being handed around among her peers, mostly lawyers and other auditors.

    She was talking to the new NJ person yesterday, she says, and everyone agrees it is a huge deal, but that it would have to be proven the sender knew a person was driving, which is hard to do unless it's part of the text.

    Texting and driving is already a huge deal in NJ. It is not surprising this case comes from this venue.

    The place was utterly dark—the oubliette, as I suppose, of their accursed convent.

    by bastrop on Fri Aug 30, 2013 at 02:42:51 PM PDT

  •  It seems a very high bar to meet (5+ / 0-)

    You have to not only know that the person is driving, but you ALSO have to have some special reason to think he'll look at your text while driving.  That's what this seems to say tome.

    It seems to me that the Court is saying, if you know that person is driving, that's not enough.  You can expect that the recipient will read it later.  If, however, you have a special reason to KNOW that the person will read it while they are driving, that's what will bring liability.

    It seems that kind of thing could only be if, for example, there's something really important you want to text someone about, and you know he's driving, AND he's told you he wants to know right away.  Or, perhaps if you've ridden with him before and you know he always reads texts while driving.  Or maybe if you have a reason to know he absolutely needs the information you are texting, you know he is driving, and you know he needs it before a certain time or before he arrives at his destination.

    The Court didn't say what kind of conduct meets the standard, but that's what it would have to be, it seems to me.  

  •  As I've told my 20-something daughters... (4+ / 0-)

    "You know how daddy is going to die? I'm going to be hit by a car driven by a texting driver as I ride my bike to or from work. Don't text and drive."

    They do not text and drive. (At least as far as I know.)

    Calling other DKos members "weenies" is a personal insult and therefore against site rules.

    by Bob Johnson on Fri Aug 30, 2013 at 03:37:13 PM PDT

    •  I can't imagine taking my eyes off the road (3+ / 0-)
      Recommended by:
      Eyesbright, thomask, wilderness voice

      long enough to even read a text.

      •  Do you ever read directions? (0+ / 0-)

        I do -- usually on paper -- but I can see how people who are used to reading everything on the little screen would glance at it.

        And given how many people are texting while they're walking down busy city streets, totally oblivious to everyone around them, I guess it doesn't surprise me that people do it while driving.

        •  Have you been listening in my conversations (1+ / 0-)
          Recommended by:
          417els

          with my teen son??

          Cell Phone Use Not Just Dangerous for Drivers, Study Finds

          COLUMBUS, Ohio – More than 1,500 pedestrians were estimated to be treated in emergency rooms in 2010 for injuries related to using a cell phone while walking, according to a new nationwide study.

          The number of such injuries has more than doubled since 2005, even though the total number of pedestrian injuries dropped during that time. And researchers believe that the actual number of injured pedestrians is actually much higher than these results suggest.

          “If current trends continue, I wouldn’t be surprised if the number of injuries to pedestrians caused by cell phones doubles again between 2010 and 2015,” said Jack Nasar, co-author of the study and professor of city and regional planning at The Ohio State University.

  •  In Trains magazine a few issues ago (2+ / 0-)
    Recommended by:
    Eyesbright, wilderness voice

    they talked about texting in the cab while the train was rolling along and the crashes that happened .
    I think there is now a ban on texting while in control of trains .

    https://www.google.com/...

    "please love deeply...openly and genuinely." A. H.

    by indycam on Fri Aug 30, 2013 at 03:38:12 PM PDT

    •  If I recall correctly (2+ / 0-)
      Recommended by:
      Code Monkey, 417els

      in the train crash in Northern Spain that killed so many recently, the train driver was on his cell phone with controllers from the railroad about the trip - they were giving him complex instructions, or some such, and he did not slow down for the curve.

      "When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?"--Eleanor Roosevelt

      by KJC MD on Mon Sep 02, 2013 at 06:47:07 PM PDT

      [ Parent ]

  •  Is this real? I can't believe it (5+ / 0-)

    I can't believe that a U.S. court would interpret law so as to hold Person B responsible for Person A's actions and choices. You can easily ignore phone calls and texts while you're driving. Silence your phone if it's a distraction to you while you drive. It's on you how you behave while you drive, seriously. YOU.  

    I could send you a text every 10 seconds while you drive a series of hairpin turns and it wouldn't be my fault if you stopped to look at my texts and had an accident while you drove. That's entirely your choice.

    I'm amazed and dismayed by this completely ridiculous ruling. Am I the only one?

    Please note that I am very against texting while driving. But here, we were talking about receiving texts while driving, which is also stupid and which people are also responsible for themselves.

    Unbelievable.

    I'm amazed by people's courage and kindness in the face of everything and life.

    by LaraJones on Fri Aug 30, 2013 at 03:46:20 PM PDT

    •  if the person (1+ / 0-)
      Recommended by:
      magnetics

      Driving says I'm driving ...and you constantly text?
      Hell yes I support you being held liable.

      "My Mom is my hero, my angel and I revere her to no end.." Christin, July 6, 2013

      by Christin on Fri Aug 30, 2013 at 03:51:20 PM PDT

      [ Parent ]

      •  You still don't have to respond. (2+ / 0-)
        Recommended by:
        jayden, wilderness voice

        Turn the damn thing off. Put it in the trunk.

        Help stop gas drilling in Pennsylvania's Loyalsock State Forest!

        by marina on Fri Aug 30, 2013 at 04:29:45 PM PDT

        [ Parent ]

      •  I'd support (1+ / 0-)
        Recommended by:
        wilderness voice

        You being seriously deficient in your mental faculties, in which case you shouldn't be operating a car in the first place.

        The person sending the text is not jumping up and down and waving their hands in front of your face to get your attention while driving.  

        If it's that important, pull over and read them.  Take some goddamn personal responsibility.

        GOD! Save me from your followers.

        by adversus on Fri Aug 30, 2013 at 11:12:47 PM PDT

        [ Parent ]

        •  Weird (0+ / 0-)

          You are demanding that the reader take personal responsibility, but completely absolving the sender?

          Again, with the bar set that the sender must have knowledge that the receiver is 'likely' to be distracted by the text (i.e. driving and likely to respond), this isn't solely the responsibility of the driver. There is such a thing as shared responsibility.

          •  Yes, I am absolutely putting complete (2+ / 0-)
            Recommended by:
            417els, jncca

            responsibility for the driver's driving on the driver. And that's because it's so easy to silence your phone or switch it off. Even if it's ringing in your ear every five seconds, you can still ignore it. It's seriously PURELY your choice how much danger you put yourself and others in.

            Plus, as a sender, I have no way of knowing for sure whether you're driving or not. But that's beside the point. The point is, take responsibility for your own driving, people--don't mess with your phone while driving! If you do, don't whine that others made you do it and should share responsibility.

            I'm amazed by people's courage and kindness in the face of everything and life.

            by LaraJones on Mon Sep 02, 2013 at 08:51:01 PM PDT

            [ Parent ]

            •  If you have 'no way of knowing for sure' (0+ / 0-)

              then you have no liability.

              Why is this point constantly overlooked?

              And 'sharing' responsibility doesn't lessen the driver's responsibility, it just adds further responsibility to the sender for knowingly contributing to the distraction of the driver.

              The driver doesn't get out of it, and I see no reason why your exemption for the sender corresponds to 'taking personal responsibility' when it seems you're arbitrarily absolving them no matter what.

              •  Because no matter what the text sender does, (0+ / 0-)

                it is the driver's choice, and only the driver's choice, to look at the text. Something that the sender has no control over and should not be held responsible for. We're adults. Let's take responsibility for our own actions in the privacy of our own cars. Please. I'm just amazed at how many posters would apparently share out the blame for their own actions with others. Stand up and own your own choices.

                I'm amazed by people's courage and kindness in the face of everything and life.

                by LaraJones on Tue Sep 03, 2013 at 08:40:59 AM PDT

                [ Parent ]

                •  No control? (0+ / 0-)

                  WTF? The sender has 'no control' over whether they knowingly send a text to a driver?

                  You selective 'responsibility' has me utterly confused.

                  How's this for a choice...if you know someone is driving, don't text them. How is that not a choice? If you choose to text them, then why give them a pass on taking some amount of responsibility for the distraction that their choice to send a text incurred?

                  Stand up and own your choices.

      •  Why, did I reach through with my text (1+ / 0-)
        Recommended by:
        417els

        and force you to look at it while driving? No, you have choices and you made the choice to be distracted.

        I'm amazed by people's courage and kindness in the face of everything and life.

        by LaraJones on Mon Sep 02, 2013 at 08:48:41 PM PDT

        [ Parent ]

    •  What if youre reading a book? (1+ / 0-)
      Recommended by:
      jayden

      And yes I have seen more than one person doing this. Can you sue the author of the book?
      Also eating----LOTS of people eat in their cars and everyplace has a driveup window----can you sue the fastfood company if someone hits you while eating?
      What if the person is having sex while driving (seen it) can you sue the partner too?
      I'm all against texting while driving but this certainly opens up a new field for attorneys to sue.

      Happy just to be alive

      by exlrrp on Fri Aug 30, 2013 at 04:43:54 PM PDT

      [ Parent ]

    •  That was my first reaction (0+ / 0-)

      and I wrote a comment expressing it but then canceled it because I changed my mind.  I remembered that we already do something similar when we hold third parties liable for drunk driving.

  •  don't read LOOKOUT!!! this/now.. (1+ / 0-)
    Recommended by:
    magnetics

    Don Benedetto was murdered.-IgnazioSilone(BreadAndWine)

    by renzo capetti on Fri Aug 30, 2013 at 03:59:25 PM PDT

  •  Texting While Driving is TIME SHARING Not Multi- (6+ / 0-)

    tasking. You watch the road for a moment, you watch the device for a moment. You can't do both at the same time.

    Playing a whistle or harmonica while driving, possibly steering with the leg, would be multi-tasking. I'd feel much safer seeing a driver doing that than texting. Many musicians train to use their eyes while playing: reading sheet music for example, or marching.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri Aug 30, 2013 at 04:03:50 PM PDT

    •  Yup (4+ / 0-)
      How come? The Utah folks speculated that multitaskers would be more apt to test high for traits like risk-taking, sensation-seeking and impulsivity. Turns out the researchers were right.

      /snip

      They found that the people who multitasked the most in real life — the impulsive risk-takers — were actually much worse at juggling tasks than people who rarely drove while phoning.

      Even worse, these demon multitaskers thought they were terrific at it, though the cold, hard data proved they weren't.
      thumbnail

      "People don't multitask because they're good at it," says , a professor of psychology at the University of Utah and lead author of the , which was published online in the journal PLOS One. "They do it because they are more distracted. They have trouble inhibiting the impulse to do another activity."

      Seventy percent of the study participants, all college undergraduates, said they thought they were better than average at multitasking. Of course, that's statistically impossible — a drivers' ed version of Lake Wobegon, with all multitasking drivers above average.

      http://www.npr.org/...

      So the drivers who are most likely to be risk takers are the ones who "multi-task."  That may explain why texting and driving accidents always seem so catastrophic. These may be drivers who engage in other risky driving behaviors, like speeding, following too close, abrupt lane changes, etc.

      © grover


      So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

      by grover on Fri Aug 30, 2013 at 04:24:28 PM PDT

      [ Parent ]

      •  The old conflation of median vs mean. (3+ / 0-)
        Recommended by:
        mike101, TFinSF, ebohlman
        Seventy percent of the study participants, all college undergraduates, said they thought they were better than average at multitasking. Of course, that's statistically impossible.
        Let's say you have 70 undergraduate statistics students score 100% on their final exam.  Thirty others get a zero.  The average exam score is 70%, and 70 students are above average.

        It's unlikely that a class would rank out that way, and it's doubtful that even the author of the linked article would have scored a zero, but then again she probably didn't even take the class.

        "They let 'em vote, smoke, and drive -- even put 'em in pants! So what do you get? A -- a Democrat for President!" ~ Faster, Pussycat! Kill! Kill!

        by craiger on Fri Aug 30, 2013 at 05:07:22 PM PDT

        [ Parent ]

        •  More important is the failure to assign (0+ / 0-)

          a reference group to "average". Better than whose average? The general population? Undergraduates in general? Undergraduates at their particular school? People they personally know? It's the statistical version of the passive voice.

          A few years ago, there was some brouhaha over the fact that the crime rate for NBA players was higher than that of the general population. However, the "general population" was a meaningless comparison group in this case, since about 63% of the general population consists of women and children whereas NBA rules restrict players to being adult men. Most of the difference vanished when you picked "adult males" as the comparison group (after properly adjusting for other factors like socioeconomic background, the NBA players wound up having a lower crime rate than demographically similar groups).

          Personally, as a physician, I would be very concerned at a child becoming febrile after having ingested bleach or had it shot up his rectum—Orac (Respectful Insolence)

          by ebohlman on Sat Aug 31, 2013 at 04:46:51 PM PDT

          [ Parent ]

        •  The paper isn't conflating mean with median (0+ / 0-)

          the paper conflates median with median.

          Reasonable suspicion? How can being wrong 98.6% of the time ever be reasonable?

          by happymisanthropy on Mon Sep 02, 2013 at 07:17:50 PM PDT

          [ Parent ]

        •  The bottom line is everyone sucks at (1+ / 0-)
          Recommended by:
          417els

          "multi-tasking" and it's just a spiffy ad slogan to get folks to buy more shit, and work harder to buy more shit.

          Listening to the NRA on school safety is like listening to the tobacco companies on cigarette safety. (h/t nightsweat)

          by PsychoSavannah on Mon Sep 02, 2013 at 07:59:06 PM PDT

          [ Parent ]

  •  I was once listening to talk radio at night (0+ / 0-)

    and heard someone talking about suing the makers of those sun shields you put on your dashboards because his son was in an accident while driving with one still up. The reasoning was that no where on the shield did it say to take it down while driving.

    It turned out that it was "The Phil Hendrie Show" so it was a fake guest. This case seems like it would be a good skit for him.

    Most of the people taking a hard line against us are firmly convinced that they are the last defenders of civilization... The last stronghold of mother, God, home and apple pie and they're full of shit! David Crosby, Journey Thru the Past.

    by Mike S on Fri Aug 30, 2013 at 06:03:43 PM PDT

    •  it wouldn't surprise me, after all we are the (1+ / 0-)
      Recommended by:
      417els

      society that needs a warning on the blow dryer to not use it in the shower......

      We aren't the brightest bulbs in the chandelier to start with, then add the litigious nature of our society where nothing is ever the fault of the person who is actually injured through stupidity.

      Yeah, unfortunately I can see it.....

      Vaya con Dios Don Alejo
      I want to die a slave to principles. Not to men.
      Emiliano Zapata

      by buddabelly on Mon Sep 02, 2013 at 07:02:00 PM PDT

      [ Parent ]

  •  So (0+ / 0-)

    If you go through the McDonald's drive through.  And you buy cheesburgers.  And McDonald's knows you will be eating while you're driving (because you told the McDonald's window person you would be).  And you spill mustard on your blouse and you look down to try to mitigate the sartorial damage.  And that distraction causes a maiming accident.  Is McDonald's liable to the injured driver?

    It depends, at least in part, on whether you take the Cardozo or Andrews view of proximate cause.

    Bend over, here comes another hypothetical.

    This aggression will not stand, man.

    by kaleidescope on Fri Aug 30, 2013 at 06:32:16 PM PDT

  •  Maybe I'm the only person in the world who (0+ / 0-)

    does not know this, but: HOW do you text while driving? Don't you need both hands to type and hold the phone?  Are texting-while-driving people using their knees to hold the wheel? I just can't picture it.

    New signature coming soon!

    by NYWheeler on Sat Aug 31, 2013 at 11:28:18 AM PDT

  •  WTF? This is ridiculous (0+ / 0-)

    There is a HUGE difference between waving your hand in front of the driver while in the passenger seat and texting someone. I often text assuming that the driver will text back when able to; not immediately! What the H happened to putting your phone on vibrate or turning it off or ignoring the text? For god's sake it's easy to do and it is YOUR responsibility to do this when driving.

    An eye for an eye and the whole world will be blind.

    by rini6 on Sat Aug 31, 2013 at 12:25:33 PM PDT

    •  Again, the court ruled that liability only (0+ / 0-)

      attached if the sender of the text had actual reason to believe that the recipient would try to read or respond to it while driving (conclusion of law) and that the plaintiff had failed to prove that the defendant had such reason in this case (finding of fact).

      Personally, as a physician, I would be very concerned at a child becoming febrile after having ingested bleach or had it shot up his rectum—Orac (Respectful Insolence)

      by ebohlman on Sat Aug 31, 2013 at 04:55:09 PM PDT

      [ Parent ]

      •  Still think that it's (0+ / 0-)

        the driver's responsibility in most, if not all, cases. As in this case, it's impossible to know that the driver will read the text while driving.. so I agree with the decision... although I feel awful for the victims.

        An eye for an eye and the whole world will be blind.

        by rini6 on Sat Aug 31, 2013 at 06:15:00 PM PDT

        [ Parent ]

  •  Hooray for this. Ammunition in my constant (1+ / 0-)
    Recommended by:
    Mark Mywurtz

    battle with my kids (AND my wife).
    And, the sad thing is ... this is yet another republicans killing people through legislation issue. They will NOT allow bills to be passed to make cell phone use agin the law.
    Fuckers.

    •  Why Republican? (1+ / 0-)
      Recommended by:
      Adam B

      Maybe in your state it's the Republicans who are blocking it; in other states it's Democrats. In other states it's people who don't want to give the police any more excuses to stop young people and especially young people of color.

      I'm not convinced that making cell phone use while driving illegal is useful (or enforceable).

  •  FWIW, something to think about (7+ / 0-)

    Even if you think it's a useful rule to hold such persons accountable, think about the transactions costs it's going to take to do so -- in every accident in which a cell phone is involved, whoever was communicating with the reckless driver is going to be made a defendant, will need to lawyer up, respond to written discovery and give a deposition, and then even if it's clear that person didn't know the other person was texting/talking-and-driving, still may have to file a summary judgment motion to get out of the case if the plaintiff doesn't do so voluntarily.

    •  Ow. That's a good point. (1+ / 0-)
      Recommended by:
      Miggles

      But the bar is so insanely high — if I'm not mistaken (though IANAL), even knowing that the recipient often reads texts while driving wouldn't be enough because you couldn't know they'd read that particular text.

      If it's a strategy that almost never works, can it still be worth trying on a regular basis?

      Code Monkey like freedom / Code Monkey like peace and justice too
      Code Monkey very nerdy man / With big warm fuzzy bleeding heart
      Code Monkey like you!

      Formerly known as Jyrinx.

      by Code Monkey on Mon Sep 02, 2013 at 06:46:08 PM PDT

      [ Parent ]

      •  From the Plaintiff's perspective ... (3+ / 0-)
        Recommended by:
        Code Monkey, vcmvo2, FindingMyVoice

        Once you've decided to sue the driver, it's not much of an added cost to add on another defendant (Jane Doe, until discovery with the initial defendant yields the name) from whom you'll take a deposition and issue some written/e-discovery.  And maybe you find someone who's truly jointly liable.

        •  Huh. Well, maybe I don't feel too bad about that, (1+ / 0-)
          Recommended by:
          Mark Mywurtz

          if texting while driving can be a legal hassle for your friends, too.

          Code Monkey like freedom / Code Monkey like peace and justice too
          Code Monkey very nerdy man / With big warm fuzzy bleeding heart
          Code Monkey like you!

          Formerly known as Jyrinx.

          by Code Monkey on Mon Sep 02, 2013 at 07:01:52 PM PDT

          [ Parent ]

          •  even friends who don't know you're driving? (5+ / 0-)

            Will this liability rule change social norms to prompt more people to ask "U DRIVIN DUDE?" first?

            •  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
              Code Monkey very nerdy man / With big warm fuzzy bleeding heart
              Code Monkey like you!

              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.

  •  I recall that a few (5? 10?) years ago NJ (1+ / 0-)
    Recommended by:
    417els

    instituted a law that made it illegal to drive while sleepy.

    Wonder how that turned out (e.g., how many people have been convicted of that oh-so-sensible-but-seemingly-unenforceable statute)?

  •  Insurance companies should not pay... (0+ / 0-)

    Insurance companies should not pay if the phone
    records prove that the driver in an accident was on
    the phone or texting at the time of the collision.

    Period.

    This must be the new standard for auto insurance
    policies.  If a driver who is guilty of texting or phoning
    while driving causes bodily harm, they will face a mountain
    of medical, hospital, and rehab bills.

    Maybe, just maybe, a few cases where the insurance
    companies do not pay -- drivers will get the message.

    •  That would defeat the whole point of insurance... (2+ / 0-)
      Recommended by:
      Adam B, FindingMyVoice

      States don't require you to have insurance just so YOU are protected, its also to protect the person who is injury so they have a source of funds to pay their medical bills and whatnot. If someone got a multi-million dollar judgment against them for such an accident, the vast majority of folks would never be able to pay that off. Under your scenario, the texting driver would be forced to declare bankruptcy, and in all likelihood, the injured party would get little to nothing. Maybe the victim would get something from his or her uninsured motorist insurance, but its likely to be far less than otherwise recoverable. And even if you said you can't set such awards aside in bankruptcy, it doesn't change the fact that most folks could never pay the award. You can't just magically conjure money where none exists.

  •  Does the drive HAVE to read and respond...? (0+ / 0-)
  •  A pretty straightforward rationale. (1+ / 0-)
    Recommended by:
    Code Monkey

    There's no principled way to distinguish one kind of knowingly distracting act from another more physically distant one... its just a tougher proof problem.

    It also seems like the rationale carries to phone calls and is even stronger in that context; if you call and hear "Oh hey, I'm on the road, what's up?" and you keep talking, it's much easier to prove that you're knowingly distracting, since texts aren't instant-reply by nature like a conversation is.

    To some of the points I've read above. One, this argument does not eliminate driver liability; only a distraction that a reasonable person could not resist would potentially get the driver off the hook. Two, not all distractions are created equal. Eating distracts drivers, but whether that's as dangerous as phone use depends on statistics. Usually intellectually engaging distractions are worse.

  •  Kudos to this court... (1+ / 0-)
    Recommended by:
    PsychoSavannah

    I wouldn't mind so much if people who text/use their cell phone while driving only ran into cement walls or off of cliffs, but unfortunately it seem their narcissism always catches someone else up in the mix.

    Through early morning fog I see visions of the things to be the pains that are withheld for me I realize and I can see...

    by Keith930 on Mon Sep 02, 2013 at 06:55:49 PM PDT

    •  I wouldn't mind either (0+ / 0-)

      Except that a fair number of them are probably minors.

      Any discussion about phones and driving that doesn't take into account the behavior of teens is not a discussion worth having.

      Political compass: -8.75 / -4.72

      by Mark Mywurtz on Tue Sep 03, 2013 at 12:15:05 AM PDT

      [ Parent ]

  •  have to read it but i think there is another piece (0+ / 0-)

    to it.  The motorcycle.  Most common thing a driver says when he/she is in an accident with a m/c? "I didn't see it." It is a human factors theory called conspicuity.  It is why m/c lights go on in daylight etc. So texting (and by expansion tesxtuling to a driver) while driving only exacerbates it.

  •  Completely and utterly nuts. (3+ / 0-)
    Recommended by:
    mahakali overdrive, LaraJones, 417els

    All that is needed is to establish that a driver has strict liability for his/her actions.

    They shouldn't read the text ,and they certainly shouldn't respond.

    Responding invites another text, and that is where the liability should lay.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    Who is twigg?

    by twigg on Mon Sep 02, 2013 at 07:00:01 PM PDT

    •  Why not (0+ / 0-)

      decline that "invitation" if and when you know it will create a public danger? Nobody's arguing that the driver is not also liable for his or her negligence.

      •  Because America (4+ / 0-)

        is litigation mad enough already.

        Why not sue the phone company too?

        They KNOW their phones are used by people while driving.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Mon Sep 02, 2013 at 07:28:22 PM PDT

        [ Parent ]

        •  Next up: suing someone for talking to a driver (3+ / 0-)
          Recommended by:
          twigg, LaraJones, Miggles

          while sitting next to him or her while driving.

          Go ahead, sue a three-year old for kicking the back of the seat too. There's nothing more distracting ON EARTH than driving a car with multiple kids in it. Nothing. It's far worse than texting. I've been a professional driver in my life, and I know that I can handle a lot of multitasking... but people in the car are the MOST distracting of all. Along with stuff that's going on in your own head.

          So I guess we should sue people who drive with head colds and get in accidents as well.

          Hell, I heard there was a piece of litigation in California over motel sheets. Admit it, Twigg, you're just the kind of guy who also likes ripping mattress tags off.

          Click the ♥ to join us on the Black Kos front porch to review news & views written from a black pov - everyone is welcome.

          by mahakali overdrive on Mon Sep 02, 2013 at 07:38:22 PM PDT

          [ Parent ]

          •  I should sue you for that! (4+ / 0-)

            There is a serious point though.

            Strict liability of the driver who is the only person who knows his own situation when a text arrives, or when he chows down on a sandwich, etc.

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Mon Sep 02, 2013 at 07:40:57 PM PDT

            [ Parent ]

            •  The things that go on in moving vehicles (3+ / 0-)
              Recommended by:
              twigg, Miggles, 417els

              are literally too numerous to detail.

              Take my word for this. I don't think there is one thing I haven't seen go on in a car at some point. I've seen some very, very strange, disturbing, and hilarious things. I used to deliver people too and from mental wards and hospitals, amongst other things. Until you have tried driving a car with someone who believes they are in a space ship headed to Zarkon 6, or someone who has taken so much Prednisone or Haldol that they are spasmodic or glued to your ceiling, or someone about to bleed out from a limb, it's hard to have perspective on this stuff. I have incredibly strong views on this for a reason...

              And I've never caused an accident.

              Kids are by far the WORST and most distracting things in cars! That, and emotional distress or fatigue (and of course, drinking). Sleepiness is a definite killer that has caused far, far more accidents than almost anything else that I've seen and is barely ever accounted for in these conversations. How often, though, do you hear of anyone suing anyone for driving-while-sleepy? I guarantee that is a leading cause of accidents, however. Along with recent break-ups.  

              Click the ♥ to join us on the Black Kos front porch to review news & views written from a black pov - everyone is welcome.

              by mahakali overdrive on Mon Sep 02, 2013 at 08:27:48 PM PDT

              [ Parent ]

        •  The social utility (0+ / 0-)

          of manufacturing phones is greater than the social utility of texting someone you know is driving. Part of deciding what's liability-creating is whether the behavior is worth it on balance, in all its cases; the importance to society of having cellphones is tremendously greater than the importance of texting someone you know is driving and know is reading your text.

  •  Yeah, but here's what actually will happen (2+ / 0-)
    Recommended by:
    Adam B, Point of Order

    I've been handling plaintiffs' auto negligence cases in NJ for 25 years and I can tell you what will change as a result of this case (assuming the NJ Surpreme Court leaves it alone): very little, except the lawsuits will cost more and go on longer. Every MVA complaint will now have additional "John Doe" defendants, and routine discovery will include everybody's cell phone records, and any time there is a call within two hours of the accident (because what if the text says "im brkg up w/u bks u suk & here i a pic of me and Danny") the varying facts of the cases will generate a large and opaque body of case law that ultimately collapses of its own weight or is thrown out by statute or decision, because whether the sender "knows that the recipient is both driving and will read the text immediately" is in most cases  simply too risky a proof problem for either side put to a jury,  and so the "knows that" standard will ultimately be replaced by a "reasonable person" standard that will be summary-judgment proof and force drive judges crazy with annoyance, because then they will have to either try every case in which cell phones are involved, or tell the sender/caller defendants' carriers to pony up at least part of the settlement to make the fucking case go away.  Also does the sender's auto liability policy cover him/her for sending the text? I bet the auto carriers already don't think so.

  •   Diarist writes: "other drivers could be forced (0+ / 0-)

    to pay. To find out why, how, and when, keep reading."
    Then there's nothing in rest of diary about why other drivers could be liable. Did diarist mean other drivers or all peole texting to drivers?

    See many people texting/driving lately. Wicked Dangerous.

  •  People Even Use Laptops While Driving (2+ / 0-)
    Recommended by:
    Naniboujou, FindingMyVoice

    Back in the early 90's I worked as a telephone tech support person for a software company which entailed me talking people through specific procedures at their computer in order to diagnose and fix their problem. I received a call in which it quickly became apparent that the man was driving while attempting to type into his laptop. I politely asked if he was driving and he said it was on the highway. I told him if he wished to pull his car over to the side of the road I would be glad to help him. He thought I was joking and kept insisting I help him. I refused to help him while he was driving and ended up terminating the call. I could not believe that someone could be so reckless. Oddly enough my fellow workers were surprised that I took such a hard line and indicated that they would have helped him because it wasn't their life at risk and didn't understand why I would feel responsible.

  •  Here's a question... (1+ / 0-)
    Recommended by:
    Mark Mywurtz

    I work in an inbound customer service call center and I get people who tell me ALL THE DAMNED TIME that they're driving while talking to me. I'm not allowed to hang up on customers, and when I've very gently tried to introduce the idea that perhaps calling us while driving, which can and does involve punching numbers into the phone to identify the account, is not the best of ideas I get a big earload of huffiness and how dare I intimate they might possibly be less than completely committed to their driving?

    So, if in this sort of situation an escalated customer has an accident while talking to me, am I going to be held liable? Because that would suck. Or would it go to the company that has the policy that agents can't refuse to speak with a customer who has informed the agent that they are driving while on the phone?

    "Nothing's wrong, son, look at the news!" -- Firesign Theater

    by SmartAleq on Mon Sep 02, 2013 at 08:41:09 PM PDT

  •  By that logic (1+ / 0-)
    Recommended by:
    Miggles

    the phone company knows without a doubt that some accidents will be caused by texting, so shouldn't they be liable too? P.S. why is texting recognized as a misspelled word by the commenting system?

  •  When humans develop psychic powers and (2+ / 0-)
    Recommended by:
    RUNDOWN, 417els

    the DMV starts issuing licenses to immature children drivers, then I will share responsibility for what someone else does. Till then, adults can stand up and own what they choose to do in their own cars. If I cause an accident because I sent/received a text while driving, it is on me, because I'm a grownup. Let's be adults.

    I'm amazed by people's courage and kindness in the face of everything and life.

    by LaraJones on Mon Sep 02, 2013 at 09:01:12 PM PDT

    •  Not all drivers are adults (0+ / 0-)

      And those minors behind the wheel are the ones I'm most concerned about.

      Political compass: -8.75 / -4.72

      by Mark Mywurtz on Tue Sep 03, 2013 at 12:21:55 AM PDT

      [ Parent ]

      •  I'm concerned about that age group too, as (0+ / 0-)

        they have the highest rates of accidents. But I'm also concerned about all the people who seem to believe that receiving a text somehow means you must look at it immediately and have no choice, and therefore you are not solely responsible for looking at the text while driving. That's equally scary. It's a false assumption and yes, it does take some of the responsibility off of the receiver of the text.

        Frightening to think we're on the road with drivers who don't own and take full responsibility for their own actions inside their car--actions no one else has any control over. This proposed new legislation is kind of a "Screen your friends and get rid of the ones who are just too important to stop communicating in the car." Scary proposition.

        I'm amazed by people's courage and kindness in the face of everything and life.

        by LaraJones on Tue Sep 03, 2013 at 08:46:36 AM PDT

        [ Parent ]

  •  Never gonna happen (0+ / 0-)

    This is a National Enquirer headline.  

  •  I feel bad for them (0+ / 0-)

    losing their legs, but I really wonder if they were wearing helmets, because it seems they've lost their brains, too.  Suing the person who texted the reckless driver?  Absurd.

    "When I was an alien, cultures weren't opinions" ~ Kurt Cobain, Territorial Pissings

    by Subterranean on Mon Sep 02, 2013 at 11:04:53 PM PDT

  •  Would we even be reading this story ... (0+ / 0-)

    ... if the call was from a corporate telemarketer?

    Or a bill collector?

    “Those who can make you believe absurdities, can make you commit atrocities.” ... Voltaire

    by RUNDOWN on Tue Sep 03, 2013 at 02:04:29 AM PDT

  •  This seems perfectly appropriate. (0+ / 0-)

    If the sender knows the receiver will do something criminally unsafe because of the sending--and that's a big "if" but it could certainly happen--then the sender should have some civil liability.  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Tue Sep 03, 2013 at 04:09:56 AM PDT

  •  This sounds like an extension (0+ / 0-)

    of the dramshop rule which I also hate.  Regardless, I hope there is a special place in hell for phone using drivers texting or otherwise.

  •  This is bad news for Joe Wong (0+ / 0-)

    When he was campaigning for President at the 2010 RTDC dinner:

    I believe that unilateralism is too expensive and open dialogue is too slow. So if elected, I will go with text messaging.

    I will text our allies just to say "hi", and text our enemies whenever they are driving.

    "O M G, you are making a nuclear weapon?"

    "But you are doing it wrong, L O L."

  •  There's an App for that (0+ / 0-)

    Just found it on the App Store, it's from Honda and it locks out your keyboard enabled apps above 15kmph using the GPS. Pure gold!  Should be required on all teen iPhones!  Well, maybe every iPhone.

    A celibate clergy is an especially good idea, because it tends to suppress any hereditary propensity toward fanaticism. -Carl Sagan

    by jo fish on Tue Sep 03, 2013 at 08:31:00 AM PDT

    •  Yes, on every phone, (0+ / 0-)

      since so many are willing to do something dumb and unsafe in the privacy of their car and then say that it's partly someone else's fault. In my time at dKos I've seen all sorts of viewpoints but I've never been this amazed. This site isn't known for ducking personal responsibility (at least not with me), but this is a huge FAIL of personal responsibility.

      If I read texts while driving, it is on me. It is my fault, it is my responsibility, and it is not someone else's. How ... ? ... I'm just ... I don't even know what to say to this idea, it's so crazy. We're not children that others need to coddle to make up for our lack of common sense and lack of experience. I'm not going to be held liable for someone who's careless enough to text and receive in their car while driving. If I send anyone a text, I expect them to ignore it while they're driving and deal with it when they get the chance. That's safe, that's responsible, that's adult, and I'm not going to be held liable for someone who chooses to be otherwise.

      I'm amazed by people's courage and kindness in the face of everything and life.

      by LaraJones on Tue Sep 03, 2013 at 08:54:14 AM PDT

      [ Parent ]

      •  I have to agree with you. Suppose someone's in (0+ / 0-)

        the car with you and, as in the court's example, waves a paper in front of your face, or distracts you with their verbal conversation. You're trapped, you can't reasonably be expected to ignore it, and the fault would be all theirs for causing the distraction.

        Now you're alone in your car with your phone, and the same idiot texts (or calls) you. You now have the option to ignore the call/text and if you answer the fault is yours for being an idiot.

        I think a higher court, if wise, would toss this out. Being an idiot while driving meets a higher standard of responsibility, than being an idiot while simply on the phone. If the higher court wants to mete out some % of responsibility, how will they decide it? Some totally arbitrary number?

        PS Most of the texting while driving that I see is by folks 30 and above. And I work in Berkeley! Now, jaywalking while texting is a different matter....

  •  Just how are you supposed to know they're (0+ / 0-)

    driving. Shouldn't it be THEM who are charged? After all they are the party who knows they are driving and could simply turn their phone off.

    Soldiers and veterans are the reason we are able to argue about issues and to live in a free country. Let's not let their blood be wasted. Remember all gave some and some gave all. Honor their sacrifices.

    by Somegaveall on Tue Sep 03, 2013 at 03:18:13 PM PDT

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