Liability for Texting to a Driver

An appeals court in the US has held that in principle, someone who sends a text message to someone she knows is driving (in this case, a motorcycle) and is likely to text back while driving, can be liable for damages caused by that driver while distracted by texting [Kubert v. Best]. In the case in point, the court held that the woman who was texting her boyfriend did not know he was responding while driving, so she was not liable for the damages he caused. (He himself settled with the victims, but his insurance did not cover the damages, so the victims were looking around for another pocket.)

Does this sound reasonable to you? Is it just a new application of standard tort foreseeability reasoning, or something new and scary or at least undesirable or unsound?

Would phoning someone’s mobile phone be any different?


  1. As I said before regarding this case… Ultimately, it is the driver’s choice whether to read and answer messages and phone calls while driving. This case cast the liability net too wide… It is not reasonably foreseeable that the driver would engage with her text message while driving… Whether or not the sender of the text message does not know or knows that the person receiving the text was driving.

  2. That makes no sense at all – scary, undesirable, unsound, and a rabbit hole we shouldn’t be going down.

  3. With appropriate facts, liability is entirely consistent with Canadian tort principle, too. That’s one consequence of Anns & Donoghue.

    Addendum: and Cooper v Hobart.

    it’s analogous to me giving you enough alcohol or drugs that you’re impaired, when I know or ought to know that you plan to drive while still impaired.

    If there is or isn’t liability, it’s because we’ve made a policy decision to allow liability or to not extend the scope of tort liability that far.

    Just like the limitations on (the extent of) non-commercial social host liability.

    It’s no longer merely a non-existent duty to rescue situation. I’m at least a sufficient causal part of the circumstance that have created a danger. I might even be a necessary part. Assume the driver’s phone has been set up so it has unique ringtones for certain people.

    That the driver is an idiot isn’t a defence to my liability.

    Or, making it simpler, my car has only a single CD player. I want something different. The passenger gives me some CD to put in knowing that it will distract me. Or, the passenger asks me to adjust the screen on the in-car monitor. I do. That we’re both in the car isn’t a distinction in principle. If we make that a distinction, it’s arbitrary.

    Apart from this, bear in mind that this in in the U.S. The driver may have had little if any vehicle liability insurance. The texter might have had some liability insurance which could apply – though I doubt it. In any event, there’s more asse(t)s to chase.