Should there be a cause of action against someone who sends a text to someone who is driving at the time?

The TortsProf blog is reporting on an interesting case before the New Jersey appellate court. In the case, the plaintiffs were injured by a driver who was distracted by a text message. The interesting part is that the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

 

The argument sounds reasonable to me, and it is consistent with tort law principles. However, the argument of the defendant is also valid. A text message (like an e-mail message) is sent so that the recipient can read it whenever he or she can, not necessarily immediately. The defendant-texter apparently argued that she could not control when the message was going to be read.

 

Now, here is the thing. Both arguments are right. The question is what are the circumstances. You can't generalize here. If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances.