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How can you avoid remote texter liability?

November 27, 2017 by Steven M. Gursten

Businesses need cell phone and texting policies to stop texting. You face legal liability when an employer knows an employee is behind the wheel and likely to read and reply to text messages while driving

You face exposure for remote texter liability.

And before you complain, consider that if you knowingly text someone when you know they are driving and likely to read and reply to your text messages, you should face legal consequences for remote texter liability. The science shows that texting is just as dangerous as drunk driving, so if you text someone who you know is in the car and expect that text to be read and responded to, then from a public safety standpoint it is just as dangerous and deadly as if you got someone drunk, put them behind the wheel of a car, and sent them on their way and then they caused a deadly car accident.

You face potential legal liability as a parent, or as an owner of a small business. If you don’t know yet about “remote texter” liability, then you’d better learn fast. The good news is that this is easy to avoid if you have a safety policy in place to protect the public, your children, your employees, and yourself. There are literally thousands of businesses that are setting up policies and programs to protect themselves and their employees from liability for distracted driving while in the course and scope of employment. It’s also our own law firm’s strict policy that everyone on our team is prohibited from engaging in texting while driving.

Specifically, the Michigan Auto Law’s “Attorney Handbook” provides:

“Cell phones should not be used while driving. Text-messaging while driving is prohibited at all times (as provided by Michigan law).”

For businesses that are grappling with the issue of employees texting while driving — and, now, trying to protect themselves from remote texter liability — I recommend consideration of some or all of the following provisions for their employee manuals:

  • Requiring that employees — while driving during work hours and/or in the course of his or her employment — pull over and stop at a safe location to text, dial and/or otherwise use or talk on a cell phone or electronic device.
  • While driving at all times — but certainly if you are a small business owner who is concerned about remote texter liability, then at least during work hours and in the course of employment — employees must comply with the company’s texting-while-driving and distracted-driving policies by refraining from handheld or hands-free use of a cell phone to text, respond to texts, talk on the phone, surf the internet and play games.

How would remote texter liability fit with existing Michigan auto negligence law?

Remote texter liability is a legal concept that originated in the New Jersey appellate courts, which makes a person liable for the injuries that result when he or she knowingly texts someone who ends up causing a texting- or distracted driving-related car crash.

This is serious business for small businesses who communicate regularly with their employees via text — especially if those communications were to occur while the employee is driving during the course and within the scope of his or her employment.

As I noted in my August 29, 2013, blog post, “Remote texting someone while they’re driving? You could be liable”:

In its groundbreaking “remote texter liability” ruling in Kubert v. Best and Colonna, the New Jersey appellate court held 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 [and, “thus be distracted from attending to the road and the operation of the vehicle”], the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.”

The bottom line for businesses is this:

If you text your employees while they’re behind the wheel, you could be sued on the theory of “remote texter liability” if the employee whom you’re texting gets in a car crash and injures or kills someone else.

Under existing law in Michigan, the respondeat superior doctrine makes employers liable for the injuries and damages caused by their employees’ negligence. This is why as an auto accident lawyer I always ask during depositions if a person were in the scope of their employment when the crash occurred.

But the “remote texter” concept adds a new layer of liability.

Although the “remote texter liability” ruling in Kubert originated in New Jersey, I see no reason why courts in Michigan could not adopt and apply its logic here. The science shows it is just as deadly as drunk driving, if not more so. So why should a parent or a small business owner who knows that someone is driving, and who expects that a text will be read and responded to be shielded from liability if they are making someone just as impaired behind the wheel as if they were intoxicated?

What policies should small businesses have to protect against remote texter liability?

I’ve lectured on this several times now, both to lawyers around the country through a Stafford webinar teaching car accident lawyers how to use distracted driving evidence in cases, and to the Michigan Association for Justice as well. I am doing this because just as with my own cases, texting and driving and other forms of distracted driving have caused a sharp spike in car accident injuries and fatalities. I’ve also been a vocal advocate for stricter laws and more serious penalties to stop texting while driving.

I support the concept of “remote texter liability.” There will come a day — hopefully soon — when texting and driving is as socially unacceptable as drinking and driving is. But just as judges and courts tended to look the other way or minimize the public danger of drunk driving in the 1970s, that’s essentially where we are at today with distracted driving.

But I see the results of this deadly behavior nearly every week in the car accident cases I litigate as an attorney, and something needs to be done to reduce the number of deaths and injuries due to texting and distracted driving.

What does Michigan law say about texters behind the wheel?

Michigan’s ban on texting while driving provides the following:

“[A] person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person’s hand or in the person’s lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle [or commercial motor vehicle or a school bus] that is moving on a highway or street in this state.” (MCL 257.602b(1) and (2))

[Community Guidelines]

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