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Forget texting while driving. Soon you could be sued just for texting a driver

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Texting while driving is illegal in 46 US states. Drivers on cell phones killed 404 people in the US in 2014, the most recent year for which statistics are available. They’ve faced jail time and lawsuits for their reckless behavior.

But what about the people at the other end of those text conversations? Could they be held liable for a fatal or injurious crash, if they are knowingly texting someone who’s behind the wheel?

There are no known US cases where a person has been held criminally or civilly responsible for texting a driver who then crashed while distracted. But a few recent cases suggest the law is headed in that direction, legal experts say.

In 2013, a New Jersey couple who lost their legs after being hit by an 18-year-old who was texting while driving attempted to sue the 17-year-old girl who sent the messages to the driver. The suit was dismissed and the couple appealed.

The Superior Court upheld the earlier decision, saying there was no way to know for certain that this particular texter was aware the recipient of her messages was driving. But the court rejected the defense’s claim that the sender of a message shouldn’t be liable at all.

“The sending of a text message by itself does not demand that the recipient take any action,” Judge Victor Ashrafi wrote. “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.”

In March, the family of a Pennsylvania man killed by a texting driver asked a court in Lawrence County if the men she was texting with could be held liable too. The court ruled it was okay to proceed with a lawsuit.

Criminal cases against text senders seem unlikely, said Adam M. Gershowitz, an associate dean at William & Mary Law School. You can’t be prosecuted for something there’s no law against, and no state laws specifically bar sending text messages to a person driving a car.

In a civil case, a jury would have to be convinced that the sender knew the recipient was driving and that the text message contributed to the crash. Drivers have the choice to ignore a text message in a way they can’t tune out other third-party distractions like a shouting passenger.

But as awareness of the dangers of texting and driving grow, the New Jersey and Pennsylvania cases show courts may be increasingly willing to hold responsible anyone who knowingly engages in a text conversation with a driver.

“Depending on the circumstances in a particular case, I think a jury would find liability,” said Timothy F. Rayne, a Pennsylvania lawyer specializing in auto accidents and personal injury. “For example, if it could be shown that someone had a habit of regularly texting with someone even though they knew that person was driving, I think a jury would have no problem finding the non-driving texter jointly liable for any accident that might occur.”

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