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Mike Bryant
Mike Bryant
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It Texting or Calling Someone Dangerous?

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Apparently, there has been a claim now being made against the person on the other end of the phone after a collision due to distracted driving. Of course, the usual naysayers are against it, but nothing new there.

The real question is how culpable is the person on the other end? It would seem that it would start with the question of what did they know at the time of the communication? Did they know the person they were contacting was driving? Do they have any knowledge of the type of driver the person is? Finally, is there any history to suggest that they should have been concerned about sending the message or making the call?

All of these questions revolve around foreseeability. Could a reasonable person suspect that the sender's/caller's message was creating some sort of dangerous circumstances? It seems to me that there are some cases where that type of knowledge would be found.

The next question would be if there was any coverage. I doubt you could get into an auto policy, but that also would depend upon the language of what causing a collision the policy covers. The homeowners would also have to be looked at for what would be covered there, but it probably contains an exclusion for automobile collisions. The reality is that lack of coverage will have a big effect on what potential defendants are pursued.

Finally, the claims will depend also upon what each state has for liability laws. In Minnesota, you can bring a claim against a defendant, but if the plaintiff's liability is greater, you will not be able to recover. I would suspect that even a jury that finds a sender/caller liable will still have far less liability on that person than the driver. It would be worth looking at joint enterprise/venture law to see if there is a way to combine the liability.

If nothing else this discussion could broaden the discussion about whether we should be banning cell phone use for drivers all together. I still think that is really the best way to address these types of concerns.