In my last post, I told you that I think in Montana a remote texter would have liability for a car wreck where s/he knew the at-fault driver was 1) driving and 2) would check the text. The next natural question is, would I take this kind of case? Yes, depending on the circumstances, I would.
According to an insurance website, 14% of Montanans carry no car insurance. In the Flathead Valley, I would suspect that this number is higher. Remember, too, Montana only requires drivers to carry $25,000 in liability insurance. It doesn’t require people to carry UM/UIM. I see quite a few number of cases come into my office where either the at-fault driver carried no insurance or minimum limits and my client has no UM/UIM. If my client was severely injured — or killed — and the at-fault driver was uninsured or underinsured, I would absolutely explore the possibility that a remote texter caused the crash. And if there was texting involved, I would make a claim against the remote texter to ferret out the details.
This kind of case would have a lot of hurdles to clear. First, I would likely have to convince the judge that the remote texter had a duty to my client not to send the text (like I talked about here). Second, and perhaps a harder sell, would be convincing a jury that the remote texter was a cause of the wreck. Because: what about the driver’s responsibility?
A driver who — runs a stop-sign, doesn’t brake when the car in front of him does, turns left directly in front of oncoming traffic … etc. — is obviously liable for the injuries he causes because of his bad decisions. Whatever the reason the driver did the thing that caused the crash, whether checking a text or just plain not paying attention, he should pay for the injuries. However, in Montana, more than one person can be the legal “cause” of a crash.
The actual jury instruction in such a case would tell the jury, “The defendant is liable if his/her negligence was a cause of plaintiff’s (injury/death/damage).The defendant’s conduct is a cause of the (injury/death/damage) if, in a natural and continuous sequence, it is a substantial factor in bringing it about.”
So, I am really quite curious. If you were on a jury, would you hold a remote texter liable for a car wreck? What kind of evidence would I need to provide?