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Texting and Driving in Wisconsin - Is the Person Sending the Text Responsible?

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Late in 2010, the State of Wisconsin adopted a law, section 346.89(3)(a), Stats.,which banned texting and driving. The law was designed to stop individuals from composing or sending texts, emails or in any other way creating typed messages via their cell phone while operating a motor vehicle. The law was designed in the hopes of reducing automobile accidents in Wisconsin due to texting. The law does not, however, specifically ban the receipt or reading of a text message or email message. Yet.

With that in mind, a recent civil suit in New Jersey(Kubert, et.al.v. Best, et. al., 2013 WL 4512313, (N.J. Super.Ct. App. Div. 2013) might make you think twice before sending a text message to a motorist whom you know is actively in the process driving. The case involves an accident in which a young man crossed the center line while texting and struck a husband and wife who were operating an on-coming motorcycle. The husband and wife, who were both severely injured (resulting in each losing a leg), not only brought personal injury claims against the driver of the car, but also against the individual who was texting the driver.

The plaintiff's argument was that the young woman who was texting the defendant was aware that he was driving at the time of the accident and ultimately contributed to the negligence of the young man's unlawful texting. The argument went on to say that because she knew he was behind the wheel, she had an obligation to avoid texting him.

The court in this case ultimately held that the person sending the text was not liable in the case because the plaintiffs did not have sufficient evidence to demonstrate that the text sender specifically knew the other was driving and that he was urged to view, did review, in an attempt to respond to the text. Id. at 7. However, they did conclude that a person sending a text has a duty to discontinue texting if they are aware that the recipient is operating a motor vehicle. The court here held that:

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 drivings have caused severe injuries or death. Id. at 10.

While there are no cases on record in Wisconsin that have found the sender of a text a fault in a personal injury accident because he or she was texting driving a driver, this case brings to light the inherent responsibility we all have while engaging in this form of communication. Will Wisconsin seek to extend its ban on texting to include sending textsto those known to be driving at the time? Probably not.

That being said, in the meantime, there is plenty of room for a Wisconsin court to consider the legal question of whether a person should be held liable for causing or contributing to a car accident because that person was knowingly engaged in an active text conversation with another person known to be driving.

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