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July 10, 2020
It is a common scenario in today’s world: a distracted driver causes an accident as a result of texting or otherwise using a phone while driving, and the accident victim suffers serious injuries and brings a tort claim for negligence against the driver. In a recent case, however, an alleged auto accident victim did not stop his pursuit of damages at the distracted driver. Instead, the victim filed another lawsuit against someone else: the person texting and calling the driver….from another location.
In Bearss v Fazzini, the plaintiff alleged that by calling and texting an individual known to be driving at the time, the defendant committed actionable negligence against plaintiff. The plaintiff had been operating his motorcycle when he was struck from behind and injured by the distracted driver, who had been using her phone while driving in the moments before the accident. According to the plaintiff, the defendant knew the driver was on the road when he sent multiple text messages and phone calls to the driver, and he knew the driver was likely to read or respond to his text messages and phone calls while driving. Therefore, plaintiff claimed, the defendant owed a duty to the nearby public not to text or call this driver because doing so would create an unreasonable risk of harm to people nearby (i.e., plaintiff) who could be injured in a distracted driving accident.
Because the Court of Appeals had not yet addressed this exact issue, plaintiff likened his case to cases involving passengers who distract drivers while both are in the vehicle. For example, the Court of Appeals has previously held that a passenger hitting or slapping a driver, thus creating a distraction and causing an accident, may be liable to persons injured as a result of that accident. By analogy, plaintiff contended the defendant was essentially “virtually present” in the vehicle when this accident occurred.
The Court of Appeals rejected this argument, focusing on themes of control and the ability to prevent harm. Unlike cases involving passengers who interfere with a drivers’ attention regardless of whether the driver welcomes the interference, in this situation, the Court found the driver had control over the situation because it was the driver’s decision whether to answer the phone, read and respond to text messages, or even have the phone on, audible, and within reach while in the vehicle.
On the other hand, even if the remote sender of a text message or phone call, such as the defendant in this case, has reason to believe that a driver will react, that sender can never have knowledge of the nature and extent of any potentially resultant dangers – is the driver at a red light or moving on a highway? In traffic or alone on the road? Under a blue sky or in an ice storm? The Court recognized that it is the driver who has the ability to observe his surroundings and assess potential risks, not the person on the other side of the phone.
In light of these considerations, the Court held that the plaintiff’s cause of action failed under existing tort law. The Court also noted that if it adopted plaintiff’s reasoning, liability for auto accidents could be imposed for a number of innocuous activities that could nonetheless distract a driver – posting on a billboard, for example, or installing a roadside sign, or even sending a letter. Thus, although potentially tempted at first, the Court declined not only to find that plaintiff had a viable cause of action under existing law, but also to create a cause of action under these modern circumstances.
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or email@example.com