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VIRTUAL PRESENCE NOT SUFFICIENT BASIS FOR LIABILITY

By Sara B. Morgan, Esq.

The sender of a text message was granted summary judgment against plaintiffs in a New Jersey personal injury action in which the recipient, while reading that text message, sideswiped the motorcycle driven by the plaintiffs. The plaintiffs, a husband and wife who both lost their left leg in the collision, named both the driver of the vehicle and the sender of the text message, alleging that the sender was “virtually present” because she knew that the recipient was driving at the time she distracted him by sending the message she knew he would read, thus giving rise to a duty owed by the sender to the plaintiffs.

The decision to grant the sender’s motion for summary judgment is seemingly grounded on the judge’s reluctance to impose a duty upon the sender. Judge David Rand found it unreasonable to impose a duty upon the sender in these circumstances, who during deposition admitted she may have known the driver was behind the wheel at the time the two exchanged several text messages. Instead, Judge Rand found that, while drivers may potentially be distracted by any number of electronic gadgets, the people of New Jersey can “expect more of [its] drivers….who are given the license and privilege to operate vehicles on our highways.”

Although this case is touted as the first of its kind, the New Jersey ruling reflects well-established principles of California law that people have the right to rely on the good conduct of others. Indeed, California Judicial Council Civil Jury Instruction 411 reads:

“Every person has a right to expect that every other person will use reasonable case and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law.” CACI 411.

Indeed, defendants are entitled to rely on the reasonable conduct of third parties who owe a duty of care to the plaintiff. Tucker v. Lombardo (1956) 47 Cal. 2d 457, 467.

This principle, however, is not without limitation, and as one would guess, the distinction is drawn based upon “reasonableness”. For instance, one who is not exercising ordinary care, or one who knows or should know that the law is not being observed, cannot rely on the “good conduct of others”. Malone v. Perryman (1964) 226 Cal. App. 2d 227, 243. “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for the harm caused thereby.” Rest. 2d Torts, §449; Bigbee v. Pacific Telephone and Telegraph Co. (1983) 34 Cal. 3d 49, 58.

In cases of catastrophic and personal injuries, issues of liability and causation are important to examine with a well-qualified, experienced attorney. The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

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