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 while 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 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?