Nobody would argue that people who text and drive and cause a collision are negligent and should be held accountable for the injuries they cause. In fact, I have argued that to text and drive may well be reckless conduct that could warrant punitive damages against the offending driver.
But should the person who is texting the driver also be held legally liable if the "texter" knows the "textee" is operating the vehicle? A New Jersey lawsuit will examine this issue. My guess is that this lawsuit will be thrown out and it should be, in my opinion, despite my sympathy for the motorcyclist and passenger who both lost a leg as a result of the crash.
Every driver under Ohio law and the law of every other state is obligated to use "reasonable care" under the circumstances. If you don't use reasonable care while driving, you are negligent. But you are legally liable for harm only if that negligence directly causes injury. Certainly, it is foreseeable that texting while driving will increase the liklihood of a crash because of the distracting nature of texting.
I'm sure the victims' attorney will argue that it was equally foreseeable to the texter that to continue to send messages to a driver also increases the same liklihood of a crash. But here's where the parallel ends. What distinguishes the texter from the driver in this case is the element of control, or better yet the lack of control over the vehicle or the driver. Nothing prohibits the driver from turning off the damn phone, ignoring the text, or pulling over to respond. By consciously choosing to ignore safety and continuing to respond to messages while driving, it is the driver's actions that have directly caused the injuries, rather than the texter's.
At least that is how I see it. Sometimes you gotta "call em as you see em," even if it means the insurance companies will prevail on this one.
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