Many courts have ruled that persons operating motor vehicles, who are distracted due to the use of a cell phone for calls or messaging, can be liable on the basis of negligence for accidents they cause. They also may face criminal liability for manslaughter. And, if the driver is operating a vehicle in the course of employment, his or her employer may be vicariously liable for the accident. This is an important reason for churches, like any employer, to adopt a cell phone policy.
A recent New Jersey case recognized an entirely new form of liability associated with the use of cell phones. A New Jersey court ruled that a person sending a text message to another may be legally responsible for injuries caused by the recipient’s distracted driving, if the sender knew that the recipient was driving a vehicle at the time of the communication. This article will summarize the facts of this extraordinary ruling, explain the court’s ruling, and assess its significance to churches and church leaders.
Facts
On a fall afternoon a husband and wife (the “plaintiffs”) were riding on their motorcycle down a state highway. As they traveled around a curve, a pick-up truck driven by an 18-year-old male (“Kyle”) crossed the center line of the highway and entered their lane of travel. The husband, who was driving the motorcycle, attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the plaintiffs’ motorcycle. The plaintiffs survived the accident, but both were severely injured and each lost a leg.
Immediately after the accident, Kyle called 911, which fixed the precise time of the accident. This information, plus Kyle’s phone records, demonstrated that he was engaged in texting at the precise time of the accident.An examination of Kyle’s phone records revealed that at the time of the accident he was texting his teenage girlfriend (the “defendant”), and that he had done so 62 times that day. The telephone record also showed that, in a period of less than 12 hours on that day, Kyle had sent or received 180 text messages. In her deposition, the defendant acknowledged that it was her habit to text more than 100 times per day. She said: “I’m a teenager. That’s what we do.” She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not. In his deposition, Kyle testified that it was not his habit to text when he was driving.
The plaintiffs sued Kyle initially, but, after learning of the defendant’s involvement in the accident, sued her as well. The defendant asked the court to dismiss her from the case on the ground that she had no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to Kyle when he was driving, and did not know he was driving. The trial judge concluded that the defendant did not have a legal duty to avoid sending a text message to Kyle, even if she knew he was driving. The judge dismissed plaintiffs’ claims against her, and the plaintiffs appealed.
The state appeals court noted: “we must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.”
The Court’s Ruling
The court began its ruling by noting that in any lawsuit alleging that a defendant is liable to a plaintiff because of the defendant’s negligent conduct, the plaintiff must prove that the defendant owed a “duty of exercising reasonable care” to the plaintiff. It is a violation of this duty that constitutes negligence. As a result, a key question in any negligence claim is whether the defendant whose conduct injured the plaintiff had a duty of care toward the defendant.
The court rejected the defendant’s argument that “a sender of text messages never has a duty to avoid texting to a person driving a vehicle.” It concluded 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.” But the court also concluded that plaintiffs “failed to present sufficient evidence to prove that the defendant had such knowledge when she texted Kyle immediately before the accident.”
In support of its ruling, the court noted that “foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists.” It explained:
It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.
The court referred to a case that involved driver distraction by text messages, Durkee v. C.H. Robinson Worldwide, Inc., 765 F.Supp.2d 742 (W.D.N.C.2011), aff’d 502 Fed. Appx. 326 (4th Cir. 2013). In Durkee, the plaintiffs were injured when a tractor-trailer rear-ended their car. In addition to the truck driver and other defendants, they sued the manufacturer of a text-messaging device that was installed in the tractor-trailer. They claimed the device was designed defectively because it could be viewed while the truck driver was driving and it distracted the driver immediately before the accident that injured them. The federal court dismissed the plaintiffs’ claims against the manufacturer of the device, holding that it was the driver’s duty to avoid distraction. Since other normal devices in a motor vehicle could distract the driver, such as a radio or GPS device, attributing a design defect to the product would have too far-reaching an effect. It would allow product liability lawsuits against manufacturers of ordinary devices found in many motor vehicles and hold them liable for a driver’s careless use of the product.
Similarly, the court referred to two state court rulings declining to hold manufacturers of cell phones liable for failing to design their products to prevent harm caused when drivers are distracted by use of the phones. The New Jersey court concluded that Durkee and these state cases “appropriately led to the conclusion that one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.”
The court further concluded that “liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving. We conclude that additional proofs are necessary to establish the sender’s liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle.”
The court continued:
We have recognized that a passenger who distracts a driver can be held liable for the passenger’s own negligence in causing an accident. In other words, a passenger in a motor vehicle has a duty not to interfere with the driver’s operations … . One form of interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving. It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road, for example, by suddenly holding a piece of paper in front of the driver’s face and urging the driver to look at what is written or depicted on the paper. The same can be said if a passenger were to hold a cell phone with a text message or a picture in front of the driver’s eyes. Such distracting conduct would be direct, independent negligence of the passenger, not aiding and abetting of the driver’s negligent conduct. Here, of course, the defendant did not hold Kyle’s cell phone in front of his eyes and physically distract his view of the road.
The more relevant question is whether a passenger can be liable not for actually obstructing the driver’s view but only for urging the driver to take his eyes off the road and to look at a distracting object. We think the answer is yes, but only if the passenger’s conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger’s actions. (emphasis added)
It is the primary responsibility of the driver to obey the law and to avoid distractions. Imposing a duty on a passenger to avoid any conduct that might theoretically distract the driver would open too broad a swath of potential liability in ordinary and innocent circumstances … . Courts must be careful not to create a broadly worded duty and … run the risk of unintentionally imposing liability in situations far beyond the parameters we now face.” The scope of a duty is determined under the totality of the circumstances, and must be reasonable under those circumstances … .
[But] when the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.
When the sender texts a person who is then driving, knowing that the driver will immediately view the text, the sender has disregarded the attendant and foreseeable risk of harm to the public. The risk is substantial, as evidenced by the dire consequences in this and similar cases where texting drivers have caused severe injuries or death.
The court concluded: “We do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.”
The court acknowledged that the plaintiffs in this case had produced evidence pertaining to the habits of Kyle and the defendant in texting each other repeatedly. They also established that the day of the accident was not an unusual texting day for the two. But they “failed to develop evidence tending to prove that the defendant not only knew that Kyle was driving when she texted him [at the time of the accident] but that she knew he would violate the law and immediately view and respond to her text.” The evidence showed that “the defendant sent only one text while Kyle was driving. The contents of that text were unknown. No testimony established that she was aware that Kyle would violate the law and read her text as he was driving, or that he would respond immediately. The evidence of multiple texting at other times when (Kyle) was not driving did not prove that the defendant breached the limited duty we have described.”
Relevance To Church Leaders
What is the relevance of this case to church leaders? Consider the following points.
1. Relevance of a New Jersey appellate court decision
The New Jersey Superior Court, Appellate Division, is the first level of appeals court in the state. There are eight “parts” located in different regions, and a ruling by a court in one part is not necessarily binding on:
trial courts in the other parts of the state;
other New Jersey appeals courts;
the New Jersey Supreme Court;
any state court outside of New Jersey; or
any federal court.
However, note the following: (1) Since this is the first court to address the liability of texters for accidents caused by the distracted driving of text recipients, it may be given greater weight by courts in other jurisdictions. This makes the case relevant to church leaders in every state. (2) The New Jersey Supreme Court may reverse or modify this case on appeal. Any future developments will be reported in this newsletter.
2. The Court’s Ruling
The court adopted the following two-prong analysis for determining the liability of texters:
First, “we do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle.”
Second, “we hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.” A violation of this duty amounts to negligence for which the texter can be liable in a civil lawsuit.
In summary, 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:
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.(1) The 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.”
(2) 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, 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.
Key Point. The issue before the New Jersey court was liability of persons who send text messages to recipients who are operating a motor vehicle at the time. The same reasoning likely would apply to persons who engage in email conversations with another person who is operating a motor vehicle, and to cell phone conversations with persons who are operating a motor vehicle. The danger to the public in each case is the same as a text message conversation.
(3) 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.
(4) 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.
(5) 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.
3. Church Liability
Churches may be exposed to liability in several ways as a result of the use of cell phones by church employees and volunteers. Consider the following:
Negligence
Negligence is conduct that creates an unreasonable risk of foreseeable harm to the person or property of another and that results in the foreseeable harm. The important point to recognize is that negligence need not be intentional. For example, negligence may include conduct that is simply careless, heedless, or inadvertent.
Second, churches can be liable for the negligence of employees and volunteers occurring in the course of their duties. This vicarious or imputed liability of an employer for the negligence of an employee is known as respondeat superior (the “employer responds”). To illustrate, if an employee’s use of a cell phone while driving on church business causes an accident resulting in death or injury to another, this can expose the church to liability on the basis of respondeat superior.Churches can be liable on the basis of negligence in a number of ways. First, they can be liable for their own negligence. For example, a church’s failure to adopt a policy restricting the use of cell phones by church employees and volunteers while driving on church business may be viewed as negligent depending on the circumstances.
Negligence Per Se
The plaintiffs claimed that the defendant owed them a duty of care because she “aided and abetted” Kyle’s violation of the law when he used his cell phone while driving. They noted that New Jersey makes it illegal to use a cell phone that is not “hands-free” while driving, except in certain emergency situations.
Several state legislatures have enacted statutes prohibiting the use of cell phones for texting or calling in some situations. According to data compiled by the United States Department of Transportation:
41 states ban text messaging by all drivers (an additional 6 states ban all texting by novice drivers);
12 states ban the use of handheld cell phones while driving;
no state bans the use of hands- free cell phones while driving, but several ban hands free use of cell phones by bus drivers and 37 states ban cell phone use by novice drivers (defined differently from state to state)
Under the principle of negligence per se, a person who injures another as a result of violation of a statute may be liable to the victim. The significance of a finding of negligence per se is that actual negligence is presumed. There is no need to show any culpability on a defendant’s part other than a violation of a statute. This means that a person who injures or kills another while violating a state law barring use of a handheld cell phone would be automatically liable for monetary damages without a need for the victim to prove actual negligence. In other words, the mere failure to comply with the law constitutes negligence per se. And, the distracted driver’s employer may be vicariously liable if the accident occurred while the driver was engaged in the course of his or her employment.
This makes it essential for church leaders to be familiar with applicable federal, state, and local laws pertaining to the use of cell phones while driving. Allowing employees and volunteers to operate cell phones while driving may expose the employing church to liability for any deaths or injuries that may occur. Even when the use of a cell phone is allowed by law, this does not preclude a driver (or his or her employer) from being liable for deaths or injuries resulting from the driver’s negligence.
Gross Negligence
Most states have enacted laws limiting the liability of church officers and directors. In some states, these laws protect all church volunteers. In some cases, the statute may protect only officers and directors of churches that are incorporated under the state’s general nonprofit corporation law. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.”
In 1997 Congress enacted the Volunteer Protection Act (42 U.S.C. § 14501). The Act clarifies that it “preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.” The Act states that
no volunteer of a nonprofit organization shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization if (1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and (4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to possess an operator’s license or obtain insurance.
As with state laws, the federal Volunteer Protection Act affords only “limited” immunity to uncompensated volunteers since it provides no immunity from liability for gross negligence. Gross negligence has never been definitively defined, but it certainly connotes behavior that goes beyond ordinary negligence and approaches recklessness. What kind of behavior would this include? Possibly the following, depending on the circumstances:
use of 15-passenger vans to carry people, without restriction
failure to adequately screen persons who will work with minors
failure to adopt a cell phone policy prohibiting the use of cell phones by church employees or volunteers while driving in the course of church business
failure to comply with the Consumer Product Safety Commission’s recommendations regarding crib safety
Examples
The following examples illustrate potential areas of church liability.
Example. Pastor Tim is the lead pastor at his church. He is out of the office for several hours each week, and frequently uses his cell phone, for both calls and texts, while driving. The church secretary receives an important message about a church member who was recently hospitalized, and she sends Pastor Tim a text message informing him of this development and asking if he plans to be back at the church for a scheduled appointment that afternoon. She knows that at the time she sent the text Pastor Tim was driving his car to a lunch appointment with another pastor. While responding to this text message, Pastor Tim becomes distracted and causes an accident in which another driver is seriously injured. There are three potential grounds for church liability under these circumstances: (1) According to the New Jersey case, the church (as the “texter”) is liable for Pastor Tim’s negligence so long as it knows he is driving a vehicle at the time of the text message, and it knows that he is likely to read the text message while driving. It is likely that both conditions are satisfied in this case, which exposes the church to liability. (2) The church may be liable on the basis of negligence for failing to have a cell phone policy that prohibits employees from using cell phones while operating a motor vehicle in the course of church business. (3) The church may be liable on the basis of “respondeat superior” for the negligent acts of its employees committed within the course of their employment.
Example. Same facts as the previous example. Is it possible for the members of the church board to be liable for Pastor Tim’s negligence? The answer is yes. Most states, and the federal government, have enacted laws immunizing uncompensated directors and officers of nonprofit organizations from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.” It is possible that a jury would conclude that a church board’s failure to take steps to ban the use of cell phones by employees while operating motor vehicles on church business amounts to gross negligence which would eliminate the limited immunity from liability provided by state and federal law. This is especially true if text messaging while driving is prohibited by law. No court has addressed this question, so it remains a mere possibility.
Example. A church’s lead pastor sends the church’s youth pastor a text message. He does not know that the youth pastor is operating a motor vehicle. The youth pastor responds to the text message, and the two pastors engage in a brief series of text messages. The youth pastor is momentarily distracted while sending her final response, and causes an accident in which another person is injured. According to the New Jersey case, the lead pastor (the “texter”) is not liable for the youth pastor’s negligence since he did not know that the youth pastor was driving a vehicle at the time of the text message conversation. The church cannot be liable based on the lead pastor’s text messages since the pastor himself is not liable, but it may be liable for the youth pastor’s negligence based on its failure to have a cell phone policy that prohibits the use of cell phones while driving a vehicle on church business.
Example. Last year, a church adopted a cell phone policy prohibiting the use of cell phones by church employees while driving a motor vehicle on church business. While at first unpopular, and only sporadically followed, the church staff has come to see the value of the policy in protecting the church as well as the general public. Compliance has become the norm. The church secretary needs to ask the lead pastor a question. She knows that he is driving a car at the time, but she sends him a text assuming that he will read and respond when it is safe. In fact, the pastor decides to open the message and respond. This results in a momentary lapse in concentration, and an accident. According to the New Jersey case, the church (as the “texter”) is liable for the pastor’s negligent use of his cell phone for text messaging so long as it knows he is driving a vehicle at the time of the text message, and it knows that he is likely to read the text message while driving. It is likely, based on the successful implementation of the church’s cell phone policy, that the church could not reasonably know that the pastor would violate the policy and respond to the text message while driving, and therefore the church would not be liable.
Example. Pastor Ken is a church’s associate pastor. Pastor Ken needs to ask the church’s lead pastor (Pastor Tom) a question, and so he calls his cell phone. Pastor Ken can immediately tell from traffic noise and poor reception that Pastor Tom is operating a motor vehicle. During their five-minute phone conversation, Pastor Tom becomes distracted while turning a corner and causes an accident in which the occupants of the other vehicle are injured. According to the New Jersey case, it is possible that Pastor Ken would be personally liable for these injuries since he was aware that Pastor Tom was operating a motor vehicle at the time of the call, and his continued participation in the call under these circumstances exposed the public to a risk of harm. The New Jersey court only addressed the use of cell phones for text messaging, but the basis for its ruling (protection of the public from distracted drivers) applies equally to the use of cell phones for direct conversations.
Example. A church staff member engages in a text message conversation with the church’s lead pastor. The pastor becomes distracted while responding to one of the texts, and causes an accident in which occupants of another vehicle are injured. The church is sued for negligence in failing to have a cell phone policy that prohibits their use while driving vehicles on church business, but the accident victims also sue the church staff member who engaged in the text message conversation with the pastor. The staff member insists that she cannot be liable, since she was unaware that the pastor was driving a vehicle at the time of the conversation or that he would respond to the text messages while driving. How can it be established that the sender of a text message knows that the recipient is operating a motor vehicle at the time of an accident? One way would be scheduling. A staff member may know that the pastor is en route to a scheduled appointment, and based on the time of the departure and the time of the appointment, can reasonably determine if the pastor was driving at the time of the text messaging.
Example. For many years a church secretary has called the church’s lead pastor on his cell phone to discuss church business when he was not in the church office. In more recent years, she has engaged in text message conversations more often than cell phone calls. On one occasion, the pastor causes an accident due to distracted driving while attempting to respond to a text message from the church secretary. The occupants of the other vehicle were injured, and sue the church. They also sue the church secretary personally, claiming that she knew that the pastor was engaged in driving at the time of her text message, and was likely to respond. The church secretary insists that she did not know that he was driving, or that he would respond to her text message while driving. According to the New Jersey court, the court noted that “prior texting experience” can demonstrate that a text message sender knows, or should know, that the recipient will view the text while driving.
