This weekend's competition in Wisconsin is a bit more intense than it was in your grade school gym class.
A New Jersey state appeals court has ruled that a teenage girl who texted a friend just a few minutes before he crashed his truck into two motorcyclists cannot be held liable in a civil suit for their injuries.
However, two members of the three-member judge panel also wrote in their decision that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”
The New Jersey Star-Ledger editorial board writes that the implication of the ruling is that “It would not be impossible to hold message senders legally responsible in a civil case if it could be proved that they knew the recipient was likely to text while driving.”
But how could that be proved?
Legal expert Emily Bazelon tells Here & Now that according to the court decision, “if you’re the person who’s not in the car, who’s texting someone who is in the car, in order to be liable, the court has to show — has to know — that you knew the person you were texting was driving, and you knew they would open the text message. And that’s a pretty high bar. It’s hard to know how you would have that kind of specific knowledge, particularly about opening the text.”
ROBIN YOUNG, HOST:
It's HERE AND NOW. Have you heard about the court decision in New Jersey that could mean that people who send texts to drivers could be held liable if there's an accident, if they knew the text recipient was behind the wheel? The court actually cleared a teenage girl of responsibility after she texted her friend moments before a devastating accident because the court said there was no proof she knew her friend was driving.
But the decision set a precedent. It read: A texter has a duty to users of the public roads to refrain from sending the driver a text.
Emily Bazelon is a senior editor of Slate and senior research fellow at Yale School of Law. Emily, this has people buzzing. We're already getting lots of opinions at hereandnow.org and on our Facebook page. So let's explain to people who haven't heard this. What happened in the accident?
EMILY BAZELON: There was a case in which a New Jersey couple was riding a motorcycle in New Jersey - this is a few years ago - and they were sideswiped by a Chevy pickup that had crossed over the double yellow line. The truck was being driven by an 18-year-old, and he was texting at the time. He has settled the couples' legal claims against him out of court.
And so this case was about whether the 17-year-old girl, who was texting with him but was not in the car, whether she could be held liable for the accident. And the court held that she could not be.
YOUNG: OK now, so this was a civil suit; these were lawsuits. This was not a criminal case because New Jersey does ban texting and driving.
BAZELON: New Jersey does ban texting and driving; you're right. And they actually have tried to really crack down. In the last year, lawmakers passed a bill allowing for prison time for drivers who illegally use a cellphone and cause injury or death. But you're right. In this context, we're talking about civil court.
YOUNG: Right. OK, so there are criminal cases, but this is a civil suit. The young girl was cleared because in this case Shannon Colonna - again, the girl who texted the driver - the court said she had no liability, there wasn't enough proof. This is the biggest question people have: What kind of proof - did they outline what kind of proof you have to have?
BAZELON: Yeah, they said that if you're the person who's not in the car, who's texting someone who is in the car, in order to be liable, the court has to show, has to know that you knew the person you were texting was driving, and you knew they would open the text message. And that's a pretty high bar. It's hard to know how you would have that kind of specific knowledge, particularly about opening the text.
YOUNG: Well, it also leads to other questions. We can get to what some people might be texting that might indicate this is what - you know, hey, while you're driving, could you just open this from me and respond? You know, that's pretty clear. But how do you get that? Can cellphones automatically be seized and texts looked at if there's a question?
BAZELON: Yes, actually. The police in New Jersey, at least according to a bill that was introduced this year, the police would be able to confiscate cellphones right at the scene of a car accident. And that's another kind of deterrent that lawmakers are trying to put forward in order to crack down on this behavior.
And I think the larger context here is that while 41 states, most states, have banned texting while driving, we still are seeing the rates either of this behavior either increase or not go down very much. And so I think you can see this kind of grasping on the part of the judges in this case and lawmakers in some states to try to figure out how to send a really clear message about what a public health hazard this is.
YOUNG: Well, sure, we've seen deaths and, as we just heard in this accident, a couple each, a husband and wife each losing a leg, just devastating, because of texting. But how far can courts go in getting this information? So you might confiscate cellphones at the scene of an accident, but we're talking about then going through that cellphone material and going back and finding people who were nowhere near the accident who might have been texting at that time.
BAZELON: Right. I mean this is the outer edge of legal liability, right, because like the girl in this case, there wasn't any evidence she knew the person she was texting was in the car and that the text she was sending was posing a hazard. And at least to me, this is, like, sort of a new idea that you should be thinking before you send a text about whether the person you're trying to contact might be driving.
And I think it's useful for us all to think about that because this really is dangerous behavior. I mean there are studies that show that texting while driving is even more dangerous than driving while drunk. But I think the notion of holding someone who's not actually driving in the car responsible, that's kind of out there on the edge.
You know, it's sort of like the idea of holding the bartender who serves you a drink before you get in the car and drive drunk liable.
YOUNG: And where are we on that?
BAZELON: Where we are on that is similar kind of, you know, middle ground where there have been some courts that have indeed held bartenders or party givers liable if there's really clear evidence that someone walked out the door very drunk. But you want to have a pretty high evidentiary standard if you're going to impose that kind of liability for negligence.
YOUNG: Well, in the pretrial deposition, Shannon Colonna - again, the girlfriend who texted the driver - said she texted on average 100 times a day. She said, I'm a young teenager, that's what we do. A lot of us have evidence of that. That's - 100 is maybe on the low side of texts that might fly out. This would almost require people who are texting quite a bit to put in their subject line - and for the people who don't text, your text shows up, and then you open it. Maybe put in the subject line: If you're driving, don't open this.
Right, or you know, if you're texting someone you're close to, you may very well know their daily habits. You may know when your husband is commuting or when your babysitter is picking your kids up. And so to me at least, this is a good reminder, that's not the moment to send a text because it is very hard when people hear that little ping for them not to just take a quick glance and open the message.
You know, and even as I said what I just said, that's ridiculous, because if you're looking down at your phone to read the face of your phone, to see what the text might be, you are already distracted. It's not as if you have to open it and get in and interact. It's just the reading that's the distraction, yeah.
BAZELON: Exactly, exactly, and I think when we're thinking of being the person who's texting the driver, it's not that you're always going to know, but if you have a little reminder in your head - hey, wait a second, is this person likely in the car right now behind the wheel, then you hold back, that in itself could be a public health service.
YOUNG: Well, we're talking about a devastating accident, but we're also reading reports of roadblocks set up in various states, states like New Jersey that ban texting while driving, where if police think that if somebody is looking down and might be texting, they will pull them over and ask for the phone right there. How are we on this sort of invasion of privacy? You know, what kinds of privacy issues are raised here?
BAZELON: You know, I don't think the courts are going to be that receptive to privacy complaints about this kind of behavior because we are used to the police having a lot of authority to do drunk driving testing, to ask drivers questions. A car is a really powerful weapon, and it makes sense, in fact, to treat it with a lot of care and respect and to give law enforcement pretty wide leeway here, I think.
And so while, you know, if you're just looking in your lap and someone stops you, you might find that to be intrusive, if you think about all the times in which people are looking at their lap and they are texting, or they're eating, or they're doing something else distracted, then you can see why the police need to have the power to really be on top of this kind of behavior.
YOUNG: That's Emily Bazelon, senior editor for Slate and senior research fellow at Yale Law School, on the decision out of New Jersey that somebody who texts somebody knowing that they are driving might also be liable if there is a lawsuit in an accident. Emily, thanks so much for weighing in.
BAZELON: Thanks so much for having me.
JEREMY HOBSON, HOST:
And Robin, we are getting a lot of attention to this on our Facebook page, Facebook.com/hereandnowradio. Bruno Elker(ph) writes: The knowingly part would be extremely hard to prove in court. Waste of legislative time, he says. Dave Austin(ph) also says good luck enforcing it. And Lynette Fitch Blair(ph) says: I think children fighting in the backseat is one of the most distracting things that can happen while driving. Are they going to ban children in the car next?
YOUNG: Well, and people might also be thinking if teens understand this, they will not use the language that will tip them off, but we'd love to hear from you, hereandnow.org, Facebook.com/hereandnowradio. Back in a minute, HERE AND NOW. Transcript provided by NPR, Copyright NPR.