Auto accident victim sues the person who called driver on a cellphone

Last year I wrote about a case in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here and here.) In that case, the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable but only if the texter knew that the recipient was driving and likely to read the text message while driving. The case is called Kubert v. Best.

After discussing the case, I wrote that "one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.")"

The opportunity to answer that question has arrived.  The Chicago Daily Law Bulletin is reporting today that the estate of a woman who died in a car accident has filed a wrongful-death lawsuit against a man who called the cellphone of the driver involved in the accident. The case is named Hope Farney v. Matthew Geerdes, et al.

Not surprisingly, the plaintiff has alleged that the caller knew the call’s recipient was driving and that it would provide a distraction from the road.

Also not surprisingly, the defendant has moved to dismiss the case, arguing the complaint failed to allege a recognizable duty against him and failed to allege the negligent conduct was a proximate cause of the accident.