Birmingham Personal Injury Attorney Says Alabama May Impose Auto Accident Liability on Non-Driving Texters

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Drake Law Firm

Alabama courts will have to rule on the liability of non-driving texters.

Birmingham, Al (PRWEB) June 14, 2012

A recent New Jersey case, Kubert v. Best, MRS-L-1975-10, has garnered much attention in the national personal injury arena due to the case’s unique twist of settled tort law principles. In September 2009, both David and Linda Kubert lost their left leg when a texting driver swerved into their lane and collided with their motorcycle. In what appears to be an issue of first impression in both New Jersey and the nation, the Kuberts named both the driver and the third-party who was texting the driver at the time of the accident. Notably, the third-party texter admitted that she was aware that the driver was behind the wheel while she texted him, but Judge David Rand dismissed the non-driving texter from the suit.

Initially, one might think that such a claim has absolutely no merit. Many critics argue that a driver, not an uninvolved message sender, has a duty to prevent an accident. However, others argue for the imposition of civil liability when the non-driving messenger is actually aware that the recipient of their messages is operating an automobile. When such facts exist, Alabama principles of concerted action may be construed by courts to warrant the imposition of liability on non-texters for their contribution to distracted driver accidents.

According to Whit Drake, an attorney with Drake Law Firm in Birmingham, it is only a matter of time before the non-driving texters will be culpable for accidents: "Texting while driving accidents show no signs of decreasing. Alabama's principles of concert of action may require the imposition of liability when the non-driver knows or should know that the message recipient is operating a motor vehicle on a public road and is actively responding to messages".

According to Drake, concerted action liability, most notably found in the Restatement (Second) of Torts, § 876, addresses situations like the New Jersey case. This doctrine of joint liability imposes liability on each and every participant of concerted tortious conduct that results in harm to a third party.

A common traditional example of such concerted action liability involves two drag racers who agree to engage in a high-speed race across a state. During their race, Racer A collides with and injures Victim. Due to their agreed conduct to engage in the high speed race, Racer B is also liable for Victim’s injuries as an actor in concert of Driver A’s tortious conduct. That classic example of concerted liability is based on Restatement (Second) of Torts § 867(a), providing that concerted action liability is imposed when an individual “does a tortious act in concert with the other or pursuant to a common design with him.”

For purposes of third-party texters, § 876(a) addresses instances where liability might be imposed. However, § 876(b) provides an additional requirement for concerted action liability:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he…
(b)    Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself…

The relevance of § 876(b) to third-party texter liability first depends on whether the texter knows that the driving texter’s conversation is tortious in nature. Accordingly, the first obstacle to non-driver liability is overcome in states like Alabama, where texting and driving is prohibited by statute. Alabama’s new anti-texting statute, Act 2012-291, prohibits any driver from writing, reading, or sending a text message while driving. Therefore, some commentators believe that the Act provides claimants with an action based on negligence per se (negligence as a matter of law).

The Restatement (Second) of Torts § 876 has not been adopted in every jurisdiction, but most jurisdictions recognize some tort theory that parallels the section’s foundational purpose. For instance, Alabama has not expressly adopted § 876; Alabama does, however, recognize the substantive tort of civil conspiracy, which, Drake says, is a close rewording of Restatement (Second) of Torts § 876. "Alabama courts will have to rule on this issue at some point", according to Mr. Drake.

Drake Law Firm is a personal injury practice in Birmingham, Alabama. Founding member, Whit Drake, is a frequent speaker and author on Alabama law. His firm handles car wrecks, trucking accidents, construction injuries, automotive defects and wrongful death cases throughout the state, including Cullman, Bessemer, Anniston, Gadsden, Decatur, Athens and Huntsville. They also handle distracted driver crashes caused by cell phone use.

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