Beware – if you send a text message to someone who is driving you may be held responsible for a crash that occurs when the recipient reads and responds while driving.
In Gallatin v. Garfiulo, Pennsylvania Court of Common Pleas Lawrence County Judge John W. Hodge ruled that if the text sender had reason to believe that the recipient would read the text while driving, she/he could be held responsible for the motor vehicle accident.
In this distracted driving case, Laura Garfiulo was text messaging with her “paramour” Timothy Fend and, while distracted, hit a motorcycle driven by Daniel Gallatin. Gallatin was pinned under the vehicle, dragged 100 feet and killed. Gallatin’s estate sued the driver and owner of the vehicle and the texter Fend.
The Court pointed to Section 3316(a) of the Vehicle Code which provides:
(a) Prohibition -No driver shall operate a motor vehicle on a highway or traffic way in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion. A person does not send, read or write a text-based communication when the person reads, selects or enters a telephone number or name in an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call.
The Court also referenced Section 876 of the Restatement (Second) of Torts which states:
§876 Persons Acting in Concert
For harms resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself, or
(c)gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
While the Court allowed the claim to proceed against the texter Fend based on the allegation that the texter was acting “in concert” with the driver, the court also noted that, for liability to attach against Fend, he must know or have reason to know that at the time of the accident the person his is texting is driving and will view the text.
The lesson here is clear – distracted driving results in fatalities so if you know your relative/friend cannot resist checking their cellphone do not text.