The mere act of sending a text to another person does not create liability, even if the texter knows that the recipient is operating a motor vehicle. People often receive text messages while driving a vehicle, and choose not to read or respond to them. Texter liability arises only when the texter knows that:
- the recipient is in the process of operating a motor vehicle, and
- knows or has special reason to know that the recipient is likely to read the text message while driving.
How can one who sends a text message know that the recipient is operating a motor vehicle, and is likely to read the text message while driving? Consider the following:
- [A] court explained this critical component of liability as follows: "When the sender has actual knowledge or special reason to know from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver." According to this language, a text message sender may know from "prior texting experience or otherwise" that a recipient will view a text while driving.
- One way to prove that the sender of a text message knows, or should know, that the recipient is likely to read the text message while operating a motor vehicle is if a conversation occurs with multiple messages and responses. So long as the sender knows that the recipient is operating a motor vehicle, then the sender's participation in a multi-message conversation with the recipient will demonstrate that the sender knows that the recipient is reading the messages while driving.
- In some text messaging conversations the recipient will acknowledge, directly or indirectly, that he or she is in the process of operating a motor vehicle.
- A staff member who sends a text message to another staff member may know the recipient is engaged in operating a motor vehicle as a result of scheduling. That is, if the recipient is driving to a scheduled appointment, then the time of departure and the time of the appointment ordinarily will indicate if the recipient was driving at the time of the text messaging.
- In the case of cell-phone conversations, the fact that the person receiving the call is driving often can be established by traffic noise, poor or variable reception, and scheduling.
Excerpted from Church Law & Tax Report “Liability for Calling Church Employees on Their Cell Phones."
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