April is Distracted Driving Awareness Month, and the instant case could not come at a more appropriate time. Recently, the Pennsylvania Court of Common Pleas judge held that a person who sent a text message can be liable for an ensuing accident if the sender had reason to believe that the recipient would read the text while driving.
There, defendant Garguilo apparently took a text from defendant Fend and, while distracted, hit a motorcycle ridden by plaintiff Daniel Gallatin, who was pinned under the vehicle, dragged 100 feet, and killed. In addition to suing Garguilo, the Estate sued the texter, averring that defendant Fend sent a text message to Gargiulo who he knew, or in the exercise of reasonable care, should have known, was operating a vehicle. The decision was the result of a motion from a preliminary objection, or demurrer, akin to a pre-answer motion to dismiss in New York.
The Court, in arriving at its decision, cited a 2013 case, Kubert v. Best, where the New Jersey Appellate Court held that under certain limited circumstances a texter can be held liable: “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.” Also, the Pennsylvania Court interestingly cited Section 876 of the Restatement (Second) of Torts, which provides that a third party can be held liable if he or she encourages another in violating a duty. “In reflecting upon [both] Section 876 of the Restatement and Kubert,” the complaint withstood the legal hurdle.