As a consequence of the concept of multitasking and hectic lives, it has become commonplace for drivers to engage in other tasks while driving. Eating, applying makeup, using consumer electronics, talking on the phone, texting, and surfing the web rank among the top distractions for drivers.
For the most part, little has been done to penalize drivers who cause accidents as a result of distracted driving. The only form of distraction which has gained attention is texting, due the obvious difficulty of entering text into a phone while driving.
Young people are the primary users of text messaging. Teenagers, in particular, use this form of communication, on an ongoing basis, throughout the day; it is an integral part of their lives. They have become so adept at it that they believe they can successfully engage in this activity regardless of what else they are doing when they receive a message. Driving is no exception.
In response to this growing problem, some states have passed laws to prohibit texting while driving. Despite the wide range of distracting activities that go hand-in-hand with driving, this is the only step states have taken to penalize distracted drivers.
Many people find this approach to discouraging distracted driving inadequate. They think it doesn’t go far enough in punishing people who end up harming others by doing something that could have been prevented.
To make such offenses carry more weight, opponents have proposed the idea of holding the person texting the driver responsible for any harm that occurs while the driver is texting. This is analogous to “social host liability” laws, which make hosts of parties serving alcohol liable if a guest gets behind the wheel and injures someone.
Such laws vary greatly from state to state. Some states don’t hold hosts liable at all. Others only hold them liable for injuries occurring on their own property, or have laws which pertain specifically to furnishing alcohol to minors. Regardless of the details, the concept is the same: the person furnishing the means by which the injury occurred is considered to be equally liable (or in some states partially liable) for any injuries caused by the person they furnished it to.
In the case of alcohol, this seems reasonable, since the host directly supplies something to a guest, although there have been cases where parents who were not at home were held liable when their underage children provided alcohol to minors. So to some degree, the liable party can be removed from the situation and still be considered responsible.
Texting is different from alcohol consumption in that the texting driver is not physically impaired. He/she is simply distracted. One situation involves an altered physiological state, the other involves drawing someone’s attention away from something. Both cases cause the driver to function less than optimally. However, in the latter case, the driver’s negligent actions are voluntary, due to an unimpaired mental state. Therefore, it remains unclear whether we can attribute the same degree of liability to someone sending a text message as we can to someone serving alcohol.
Further complications would arise when trying to apply the texting while driving laws to a party not in the car because it would be necessary to prove that they knew the person they were texting was driving. Unless the text messages contained information to that extent, there would be no way to determine what the remote texter knew about the driver’s whereabouts. So extending the law to those outside of the car might be unfair, particularly since the driver could initiate contact with an unsuspecting party who would then be unwittingly drawn into an illegal act, which they could not avoid.
I recently read about the case of a New Jersey couple who each lost a leg from an accident caused by a man who was driving a truck, allegedly with his elbows, while texting. They decided to sue both the man and his girlfriend, who they claim knew that her boyfriend was driving while they were texting. The argument set forth by their lawyer asserts that she was “electronically present” for the accident. Whether he can prove this remains to be seen.
Texting while driving, as with all distracted driving, is especially dangerous for vulnerable road users like cyclists and pedestrians. What might result in a fender-bender for a car could result in a death for a pedestrian or cyclist. A lost leg is an impediment; a lost life is a terminus.
Distracted driving must be curtailed if we are ever to have safe roads to travel on. But at what price? Should we, as a society, involve those outside a car, on the pretext that they aided and abetted? Or should we place the blame squarely where it belongs — on the shoulders of the driver who made a conscious choice to risk the lives of others?
Our goal should be to modify driver behavior. Penalizing “negligent driving accomplices,” whose actions occurred in a remote location, will not put a stop to negligent driving. At best, it will raise awareness and make people think twice before texting.
Setting a precedent for “electronic presence” during a crime is dangerous. It assumes that a person in a remote location, without the benefit of sight or sound, can be responsible for the actions of someone who is physically present at the scene. Heading in this direction is a slippery slope, one that is best avoided. Even so, such situations give rise to the notion of the evolution of laws.
New laws must consider how the use of new technologies impacts road safety. With each passing day, we interact more with our devices. Perhaps boundaries ought to be set for when we must disengage from technology to free our senses for maximum effectiveness. Driving, which relies on evaluation, anticipation, comprehension and reflexes, should be such a time. But our culture and our legal system has not caught up with this yet; so we will have to make do with antiquated laws, and enact partial justice, until new concepts of presence, contribution to the actions of remote contacts, and liability can be established and implemented.
