** Hi there. You might notice my last blog post was about a year ago. I took a long break from blogging because…life and litigation weren’t leaving me much time or energy to write here. I’m back now, for the time being, until more litigation or life get in the way. Rest assured, even if I’m not here, on the blog, I’m actually here, in my Montana office, hashing out Montana law.**
It’s one of those things everybody knows. Cell phones and driving don’t mix well. I recently came across this article which discusses a novel view of how poorly cell phones and driving mix: whether a non-driving, non-present party could be liable for causing a car wreck by sending a text message. That is, some courts are allowing an injured person to bring a lawsuit against someone who was not physically present at a car wreck, but sent a text to the at-fault driver in a car wreck. New Jersey has already allowed this kind of claim against a “remote texter”. Now a court in Pennsylvania is following suit.
Could Montana go the same way? I think, in the right circumstances, yes. It might.
It boils down to a question of “duty.” Duty being a legal term of art. In 1928, Justice Cardozo penned the classic opinion regarding duty used in every tort class in America: Palsgraf v. Long Island R. Co. . Palsgraf determined that the existence of duty depends on foreseeability. The Montana Supreme Court has followed Justice Cardozo’s lead, making it clear that: “The risk reasonably to be perceived defines the duty to be obeyed.” Fisher v. Swift Transp. Co.. “That is to say, a defendant owes a duty with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous, and hence negligent in the first instance.” In another place the Fisher court says the question is, “whether the defendant could have reasonably foreseen that his or her conduct could have resulted in injury to the plaintiff. A plaintiff is a foreseeable plaintiff if she or he is within the foreseeable zone of risk created by the defendant’s negligent act.” “[I]f a reasonably prudent defendant can or should foresee a danger of direct injury, he may be negligent. Again, the focus is on what the defendant could or could not foresee.” Newman v. Lichfield.
In non-legal jargon, if a remote texter knew a the person to whom they were texting was driving and knew that the driver would absolutely — or even likely — read the text, the remote texter could legally be a defendant in a lawsuit.
I leave you with a video. Perhaps, if the remote texter knows that the driver is riding in a car with a passenger like these passengers, there is no duty…