It Can Wait
October 8, 2013 4:03 PM   Subscribe

The Superior Court of New Jersey's Appellate Division ruled on August 27 that if, as you text someone, you have special reason to know that the intended recipient is driving and is likely to read the text message while driving, you as the texter have a duty to users of the public roads to refrain from sending the driver a text at that time.

Linda and David Kubert both lost their left legs when a teenager who was texting and driving hit their motorcycle Sept. 21, 2009.

The Kuberts settled their lawsuit against 19-year-old Kyle Best, but sued then-17-year-old Shannon Colonna of Rockaway, N.J., who was exchanging texts with Best as he drove. The appeals court found no evidence submitted that Colonna knew Best was driving or would read and respond to her text at the time he crashed. The Court's Opinion holds that a duty does exist on the part of a person sending a text, but the standard for that duty is high.

It is illegal in New Jersey to use any device while driving unless it is both hands-free capable and is being used in a hands-free manner. Most new vehicles and new devices have applications that allow you to dial and some allow you to text hands-free with voice recognition software.

It Can Wait is a national campaign to have drivers pledge never to text and drive.
posted by roomthreeseventeen (60 comments total) 5 users marked this as a favorite
 
Whew, they didn't say anything about posting to Metafilter while driving!
posted by blue_beetle at 4:14 PM on October 8, 2013 [3 favorites]


I have no problem with this.
posted by mudpuppie at 4:15 PM on October 8, 2013 [1 favorite]


The standard seems to be set so high that I'm hard-pressed to think of a scenario in which the other texter would meet it. It seems like the content of the message itself would have to reveal that the sender expected the recipient to read it while they were still driving.

"Hey, what are you doing?"
"Driving from Tucson to Las Vegas. It's gonna be a long, boring night."
"That sucks. Wanna play 20 questions to pass the time?"
posted by savetheclocktower at 4:18 PM on October 8, 2013 [6 favorites]


Aren't their apps now that you can toggle on while you're driving to autorespond to your texts for you?
posted by Jacqueline at 4:19 PM on October 8, 2013 [1 favorite]


I see a new episode of Law & Order coming!
posted by King Sky Prawn at 4:19 PM on October 8, 2013 [6 favorites]


Actually, on second thought....

I have no problem with this law when it's applied to back-and-forth text conversations. If you're having a back and forth with someone you know is driving, you're part of the problem.

Just earlier today, though, I was talking with my partner while she was driving. (She was using her bluetooth, naturally.) After we got off the phone, I texted her because I forgot to add something to the grocery list. After I texted "Can you pick up ______," She responded with a "K," while driving.

I wish she hadn't. I didn't know she was going to. I figured she wait until she was parked at the grocery store. But she didn't.

So, I don't know. Maybe a little bit of mixed feelings?
posted by mudpuppie at 4:20 PM on October 8, 2013 [2 favorites]


> I wish she hadn't. I didn't know she was going to. I figured she wait until she was parked at the grocery store. But she didn't.

Had she gotten in an accident because of that text, I still don't think you'd be held liable for sending it, since you had no special reason to know that your partner was going to read it while she was driving. The standard is ridiculously high.
posted by savetheclocktower at 4:22 PM on October 8, 2013


Someone should put up billboards explaining it's wrong to distract drivers with text
posted by Benjy at 4:23 PM on October 8, 2013 [33 favorites]


Is nobody worried about the slippery slope of these laws? I thought we already had laws that covered generally irresponsible driving. Itemizing the ways one can be irresponsible is going to lead to a rats nest of legislation and could do away with radios, rearview mirrors, automatic transmissions, and cat owners behind the wheel.
posted by scrowdid at 4:25 PM on October 8, 2013 [3 favorites]


We all need to learn to disconnect more frequently and more cleanly, not just for driving either. Ideally, our devices should default silence when taken into certain environments. I suppose this ruling might prompt standardization and legislation that provides that cleaner solution.
posted by jeffburdges at 4:26 PM on October 8, 2013


I still don't think you'd be held liable for sending it ..., though you would still have to pay the lawyer up front.
posted by Ardiril at 4:28 PM on October 8, 2013 [2 favorites]


If you're having a back and forth with someone you know is driving, you're part of the problem.

I don't agree. If I get a text that I want to read or expect some back and forth, I pull over momentarily.

(Would it be a reasonable legal defense to argue that because I do it, it's natural for me to assume others do too, and therefore I don't meet the bar?)
posted by anonymisc at 4:31 PM on October 8, 2013 [2 favorites]


I have no problem with this law when it's applied to back-and-forth text conversations. If you're having a back and forth with someone you know is driving, you're part of the problem.


One might just assume the recipient is doing the safe thing and pulling over before reading and replying.
posted by Drinky Die at 4:31 PM on October 8, 2013 [2 favorites]


I've Told People I'd Realized Were Talking While Driving That I Would Call Them Back In 1/2 Hour And TheN Hung Up.
posted by brujita at 4:34 PM on October 8, 2013


I'm waiting for the NJ laws against reading the paper, putting on your makeup, trying to find the latest Lady Gaga on your Ipod, etc.
posted by sfts2 at 4:35 PM on October 8, 2013 [2 favorites]


If I get a text that I want to read or expect some back and forth, I pull over momentarily.

How would you even know you had gotten such a text if you were driving at the time?
posted by IndigoJones at 4:35 PM on October 8, 2013 [2 favorites]


One might just assume the recipient is doing the safe thing and pulling over before reading and replying.

"But Your Honor - the driver was in San Francisco - it defies rationality that any reasonable person would think that finding a space to pull into is utterly impossible. Motion to dismiss case and file illegal parking charges!"
posted by anonymisc at 4:35 PM on October 8, 2013 [3 favorites]


My sister text me once while driving on the motorway (I can't remember how I knew she was driving at the time but I remember giving her a proper bollocking.) There is NO text so important that it can't wait until you've pulled over. Even if its YOUR WHOLE FAMILY IS IN A BURNING BUILDING no one is texting you that. They'd probably, like, call or something.

That said, it's ridiculous to put any blame on the other person. If you're driving, your actions are your own responsibility, surely? No one is forced to read a text. Even if your friend is texting "hey Drivy Driverson, quit paying attention to the road and txt me rite bk!" you are under no compulsion to respond.
posted by billiebee at 4:38 PM on October 8, 2013 [3 favorites]


How would you even know you had gotten such a text if you were driving at the time?

Most people have their phones set up to make a noise when they receive a text. That's why so many people were irked about those early morning Amber Alert text broadcasts that started this summer.
posted by Jacqueline at 4:42 PM on October 8, 2013


This is bizarre. How on earth is anyone supposed to prove that they did or did not know whether or not the recipient of their message would read while driving?

I get certain types of safety, traffic, and transit alerts via text. Should we hold the city or my employer responsible for sending them during rush hour? (Y'know, when they would be relevant.)
posted by desuetude at 4:43 PM on October 8, 2013 [1 favorite]


How would you even know you had gotten such a text if you were driving at the time?

My leg buzzes. Based on what I know about who is doing what and who it's likely to be, I know whether I can be bothered checking the message sooner vs later. My guess is that reading a txt while driving would be less dangerous than trying to get the stupid phone out of my jeans while driving. :)
posted by anonymisc at 4:46 PM on October 8, 2013 [1 favorite]


I think this is a weird burden to put on the sender. I had sort of assumed that what would happen before too long would be that phones will have a driving mode, the driver is responsible for putting the phone into that mode (assuming higher-end cars will have a way to automate that) upon pain of liability and ticketing. That would also stop people from Facebooking and emailing and playing Candy Crush while driving, because texting is hardly the only interaction distraction on a phone.
posted by Lyn Never at 4:56 PM on October 8, 2013


Jacqueline: "Aren't their apps now that you can toggle on while you're driving to autorespond to your texts for you?"

I just got a new phone and this is automatically enabled; if the GPS is on and you're moving at car speeds, the phone suddenly shouts at you (when a text is received) "TEXT FROM MOM; WOULD YOU LIKE ME TO RESPOND THAT YOU ARE CURRENTLY DRIVING?"

If you don't run off the road that first time, I imagine it's much safer!

XQUZYPHYR: "I realize this was a joke but honestly, exactly how is someone sending you a text message any more or less potentially distracting than, say, an Amber Alert flashing on a highway sign?"

We have some of those terrible animated billboards at two of the busiest, most complicated intersections in town, and I find them TERRIBLY distracting, especially at twilight or in the rain when they're the brightest thing in the landscape and all dancing around at you. I really think that the animation part should be illegal and there should be studies on how to change the ads (like should that be synchronized to red light cycles? Should they have to fade in and out instead of just flipping?), and there should absolutely be laws controlling their brightness w/r/t ambient light levels, because it's impossible for your eyes not to jump to it repeatedly when it's the brightest damn thing you can see and it's moving around. Like I honestly hate them to the point that I have considered trying to get the local sign ordinance changed. (And I am serious about local sign ordinances, yo; I totally file complaints when businesses place ordinance-violating signs that obscure the line-of-sight at intersections or crosswalks and I totally keep after it until the sign is removed.) They're SO distracting.
posted by Eyebrows McGee at 4:56 PM on October 8, 2013 [8 favorites]


I just got a new phone and this is automatically enabled; if the GPS is on and you're moving at car speeds, the phone suddenly shouts at you (when a text is received) "TEXT FROM MOM; WOULD YOU LIKE ME TO RESPOND THAT YOU ARE CURRENTLY DRIVING?"

Oh my god, my last moments would be a shrill neverending scream before driving into a tree.
posted by elizardbits at 5:03 PM on October 8, 2013 [9 favorites]


Marc Randazza's take on this. (Full disclosure: My Lawyer.)
posted by cjorgensen at 5:12 PM on October 8, 2013 [1 favorite]


There is GPS and accelerometers in most phones, why is there not a legislated app to at least put up a scare message?
posted by sammyo at 5:13 PM on October 8, 2013


I can't imagine how shitty it would be to have your phone yell at you like that for taking a text on a train.
posted by invitapriore at 5:14 PM on October 8, 2013 [4 favorites]


Siri reads me my texts and responds to them for me, without me taking my eyes off the road or hands off the wheel. What's my legal status?
posted by blue_beetle at 5:22 PM on October 8, 2013


Wouldn't something that automatically went into DrivingNoText mode based on speed be annoying for train riders and auto passengers?

And, as far as legislating against other distractions (isn't "distracted driving" already against the law in some places?), it's much easier to prove that you were texting while driving than that you were flipping the radio dial or even eating, putting on makeup, etc.

It's not unusual to start a text convo by asking what the other person is doing, so they might tell you that they're driving. Some people (hi mom!) will text you again and again and again until you respond because they need (want) your attention right now. If you send six texts in a row, it becomes harder to ignore. That is basically demanding a quick response and paying no regard to what the recipient may be doing.
posted by MsDaniB at 5:25 PM on October 8, 2013


This opinion is saying, "If you know someone is driving and is going to read it and you text them anyway, you can be liable for any accidents they cause."

But that's it. How can we know what someone is going to do, and how could that possibly be proved?
posted by billiebee at 5:28 PM on October 8, 2013


"We hold that the sender of a text message could potentially be liable if an accident is caused by texting but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."

Honestly, it seems like the only way you can really know is if you are sending the text from a passenger seat in the car they are driving.
posted by Drinky Die at 5:33 PM on October 8, 2013 [1 favorite]


Or maybe driving in front of them.
i can c u lol!!!
posted by billiebee at 5:36 PM on October 8, 2013


The standard seems to be set so high that I'm hard-pressed to think of a scenario in which the other texter would meet it. It seems like the content of the message itself would have to reveal that the sender expected the recipient to read it while they were still driving.

"Hey, what are you doing?"
"Driving from Tucson to Las Vegas. It's gonna be a long, boring night."
"That sucks. Wanna play 20 questions to pass the time?"


Is this supposed to be ironic? Your first sentence is contradicted by the rest of your comment. That's a completely plausible scenario.
posted by John Cohen at 5:44 PM on October 8, 2013 [1 favorite]


I'm also wondering about the mass-notification case e.g. Amber Alerts and push notifications from apps like "You haven't played in X days!" Above a certain volume you are statistically assured someone is going to see your notification while driving. Would this also meet the standard? It seems like it might, since it has nothing to do with the recipient's need to respond.
posted by RobotVoodooPower at 5:55 PM on October 8, 2013 [1 favorite]


"Hey, what are you doing?"
"Driving from Tucson to Las Vegas. It's gonna be a long, boring night."
"That sucks. Wanna play 20 questions to pass the time?"

That's a completely plausible scenario.


I was thinking, don't be mad, that's not plausible! Who would be so stupid as to do th...

And then I remembered that humans are fucking morons. Carry on.
posted by billiebee at 5:58 PM on October 8, 2013 [1 favorite]


Yeah, it's totally illegal to talk on a cellphone held to your ear here in washington (state) and everyone does it all the time. Louis CK has even said something to the effect that's it's best to just assume that every other driver on the road is texting, right now.
posted by OHenryPacey at 5:59 PM on October 8, 2013


exactly how is someone sending you a text message any more or less potentially distracting than, say, an Amber Alert flashing on a highway sign?

With the Amber Alert sign, your eyes stay focused at a range that makes sense for driving, the lighting doesn't change, and the rest of the road stays clearly in your line of sight.

With a text you switch from distance viewing to close-up, you often look away from the road entirely, and you're looking at something that (especially at night) can have dramatically different lighting.
posted by grudgebgon at 6:06 PM on October 8, 2013


Would a text on a HUD on the windshield be okay?
posted by Drinky Die at 6:09 PM on October 8, 2013


"the sender knew or had special reason to know that the recipient would view the text while driving"

Honestly, it seems like the only way you can really know is if you are sending the text from a passenger seat in the car they are driving.


Step one: Ask if you've ever been a passenger with the driver.
Step two: Ask another person (who has also been a passenger of the driver) if they noticed that the driver answers texts while driving.
Step three: Prosecute.
posted by anonymisc at 6:12 PM on October 8, 2013


In the future every car will come, by law, with a Belgian sheepdog who hates buzzing things and attacks your leg if it emits a buzzing sound.
posted by Wolfdog at 6:22 PM on October 8, 2013 [2 favorites]


Most people have their phones set up to make a noise when they receive a text.

Not since I got a text message from a telemarketer at 2:35 am about 9 months ago. If you send me a text, you're going to have to wait for me to look at my phone to find out. If you call me, like, you know, ON THE PHONE, I will hear it ring. However, I won't look at it while piloting a moving vehicle. I'll look at it when I come to a stop, & then decide whether to pull over & respond, or just make a mental note to do so when I reach my destination. I go with option 2 there, 99% of the time, because I have better things to do with my life than sit on the side of the road saying "no, really... I have... really... to go... I'm..." ugh. It actually can wait.
posted by Devils Rancher at 6:29 PM on October 8, 2013


> Is this supposed to be ironic? Your first sentence is contradicted by the rest of your comment. That's a completely plausible scenario.

It's plausible, but the specific quality of the conversation — that the sender is obviously aware that the recipient is driving from the content of the message — is extremely rare. I'd argue that the vast majority of plausible text conversations don't have that trait.

It kinda reminds me of perjury, for which the standard of proof is so high that you can give purposefully misleading testimony through omission and still be innocent of perjury. The point isn't that people don't get convicted of perjury; the point is that it's rather amazing that people do — since, in order to get convicted, you have to tell a lie that is so clumsy as to be provably deceptive beyond a reasonable doubt.
posted by savetheclocktower at 6:34 PM on October 8, 2013 [1 favorite]


There is GPS and accelerometers in most phones, why is there not a legislated app to at least put up a scare message?

Because, other than being stupid, someone might be texting as a passenger.
posted by spaltavian at 6:55 PM on October 8, 2013 [1 favorite]


You think that's bad, try being a biker/scooterist. No safe way to respond to calls, period. Even listening to music when not on a controlled right-of-way (freeway) is Darwin Award-worthy.

People are *irate* when I don't respond immediately, yet anyone who actually knows me is aware I am often on two motorized wheels where even the idea of responding to a text or call is stupidly risky. I don't wear headphones/helmet bluetooth in town traffic, either, as this also distracting and dangerous. Sometimes I feel inclined to pull over and reply, but there's very little in my life that can't wait 30 minutes to an hour.

I dread when projected displays become the norm inside windshields (or helmet face shields). One more set of distractions while obscuring some of the visual field. I don't think covering my entire biker gear with LEDs would fix that.
posted by Dreidl at 8:06 PM on October 8, 2013 [1 favorite]


It's a good thing basically everyone who receives texts while driving pulls over safely to respond to them, naturally that is why this law had to be passed
posted by threeants at 8:43 PM on October 8, 2013 [1 favorite]


spaltavian: "Because, other than being stupid, someone might be texting as a passenger."

My husband told me that my new phone (the one that shouts at me about my text messages while I'm driving, which it only knows if you're using the GPS) actually locks me out of a whole bunch of functions when it thinks I'm driving, but on the lock screen it say something like DRIVING MODE really big and then there's a greyish, faintish, small button that says "I am not driving" and when he pushed it, it turned the phone back to normal.

I've only had the phone for like three days so I have actually not been a passenger yet with it, and he was just playing with it while we were on the way to Costco and it was shouting at me and scaring me half to death. But this is like a thing, a driver/passenger functionality (It's not that phone, but it's like a similar sort of thing on my phone).
posted by Eyebrows McGee at 9:04 PM on October 8, 2013


"someone might be texting as a passenger" - Well, that's just silly. If they're a passenger, they can just talk to the driver.
posted by Ardiril at 11:01 PM on October 8, 2013


I'm also wondering about the mass-notification case e.g. Amber Alerts and push notifications from apps like "You haven't played in X days!" Above a certain volume you are statistically assured someone is going to see your notification while driving. Would this also meet the standard? It seems like it might, since it has nothing to do with the recipient's need to respond.

Maybe, but if and only if there was an accident, and if and only if there was a civil suit pertaining to it in NJ, and if and only if you could prove that it was more likely than not that viewing the Amber Alert was a proximate cause of the accident.

Even then, I am confident that a court would instead draw a distinction between knowing that your push notification would generally reach some driving people, as opposed to knowing that you are engaging in a conversation with a specific person, whom you either know or would have special reason to know that the driver would view the text while driving.
posted by Sticherbeast at 5:00 AM on October 9, 2013


Driving on the NYS Thruway this past weekend, I noticed a couple of 'no restroom' rest stops were now signed as a 'Text Stop'.
posted by rochrobbb at 5:16 AM on October 9, 2013


The end of my rampage of terror (screamed obscenities, slamming on the bumper, door) at drivers who habitually drive like maniacs in West Philly or right outside the city limits and have almost killed me a thousand times (I'm a wheelchair pedestrian, hard to see if you're not paying attention) ended when I had the following dialogue with a cop:

Me: The lady almost ran me down while turning without slowing and talking on her cell phone.
Cop: Oh, yeah, she called the cops on you because you screamed and threatened to call the police.
Me: But...
Cop: We're outside city limits (by two miles, but the area is as urban as say, Queens) so they can talk on their phones.
Me: But...this year....I've almost died---like twenty times, officer, I ain't exaggerating. And many of these drivers were on their cell phones.
Cop: (Not making eye contact). That's the culture. People feel safe behind their wheels with their big cars, they feel invincible.

Fin.

So, texting is bad, but lordy lordy lordy, car culture is just fucked in about four different ways, fucked in ways that are almost as bad as texting.

So now I just warily watch drivers, because until I can explode things with my death stare, I got nothing. I just watch the news around here about pedestrians getting mowed down, day after day.

I love Philly, but boy do I miss the aspect of Manhattan that is, "Fuck you I'm walking here. Whatthefuck is the matta with ya. What? Your MOMMA walks too slow, man, FUCK YOU."
posted by angrycat at 5:47 AM on October 9, 2013 [3 favorites]


Is nobody worried about the slippery slope of these laws? I thought we already had laws that covered generally irresponsible driving. Itemizing the ways one can be irresponsible is going to lead to a rats nest of legislation and could do away with radios, rearview mirrors, automatic transmissions, and cat owners behind the wheel.

It turns out that talking with someone who is not present is actually cognitively different than stuff like listening to the radio or chatting with a passenger. Texting as well involves shifts of focus in a different way. These are seriously different activities and the way people's brains address them changes the way people can drive/focus on other tasks.

I know that sometimes people wonder "does saying stuff on the internet ever actually change anyone's mind?" and I can say that yes, it absolutely does, because I no longer talk on the phone when I'm driving.

I used to do it sometimes because I didn't think it was that big a deal. When I first heard how problematic it is, I got kind of huffy and offended, like, "who are you to tell me what to do? How dare you question my abilities?" because I didn't want to believe that what I was doing was unsafe and I didn't want to change my habits. The next few times I got less pissy about it but I didn't actually do anything differently and eventually, after hearing about this a few times, I stopped and thought that actually, whatever I have to say ISN'T that important and can totally wait. I did change my behavior to be safer based on information provided to me about safety and cognitive stuff while driving and it was basically due to exposure to this information from the internet (including Metafilter).
posted by Mrs. Pterodactyl at 5:53 AM on October 9, 2013 [2 favorites]


Even people who only text at red lights still inadvertently spend an awful lot of the ensuing green light still texting, much to the dismay of those of us behind them. There's really just no pace for that shit in a car.
posted by Devils Rancher at 6:30 AM on October 9, 2013


Yeah, red lights are for plucking your eyebrows in the makeup mirror, not catching up on texts!
posted by Eyebrows McGee at 7:42 AM on October 9, 2013


MoonOrb: "They could admit it when asked about it or the text messages could show that they knew it, to give you the two most likely examples of how this could be proven."

This leaves me eye-rollingly wondering what precise words would pass muster to convey that one is travelling, yet not literally operating a motor vehicle at that very moment, but it is nevertheless an inconvenient time to chat via text message.

Driving...well, that's out. On my way? En route? Oh boy, best not, lest they be taken out of context.
posted by desuetude at 7:45 AM on October 9, 2013


I'm waiting for the NJ laws against reading the paper, putting on your makeup, trying to find the latest Lady Gaga on your Ipod, etc.

I actually was pulled over once for putting on makeup while driving (in DC). I asked if it was against the law (rather than just a dangerous and obnoxious thing to do, which I completely acknowledge that it is) and couldn't get a clear answer from the police officer.
posted by naoko at 8:19 AM on October 9, 2013


Cars and the ways we drive them are basically my go-to counterexample when I'm arguing with people who think humanity can invent itself out of any crisis it invented itself into. We were smart enough to create them, but it is painfully apparent that we are for the most part too stupid to operate them in anything approaching a sensible way.
posted by invitapriore at 8:35 AM on October 9, 2013


One of the GPS programs on my phone has a function that, if you try to interact with it while moving, will suggest that you wait until you are not driving to do anything complex. There's also an "I am a passenger" button that lets you past the popup. (Just to reassure everyone of my personal purity, I discovered this function while I was, in fact, a passenger.) That sort of thing is certainly possible.

I've also roundly mocked a friend who would text me asking for my ETA when I was driving to his place. (I got the text after I parked in front of his house.) So there is at least one person out there who will text someone they know is driving. Now I send him a link to a service that gives someone permission to see my location for a specific timeframe so he can just check for himself if he's that curious.
posted by Karmakaze at 8:53 AM on October 9, 2013


I wonder how many people who are so self centred that they'll text while driving are going to be put off by a skippable dialog box. 'Cause that sure sounds like something that will just piss off passengers without actually modifying behaviour.

I'm glad the interpretation has such a high bar; the whole point of texting is the communication is asynchronous.
posted by Mitheral at 9:32 AM on October 9, 2013


(I got the text after I parked in front of his house.)

This is when you put on your best upper-crust british accent, call him up, and say "I am literally outside the door, daahhling."
posted by Devils Rancher at 9:43 AM on October 9, 2013


People are *irate* when I don't respond immediately

Hopefully "I was driving," shuts them up. Unless I am picking you up or meeting you somewhere and am late, you have no right to be mad at me for not responding. Even if we are meeting, let me explain before you get mad.
posted by soelo at 2:30 PM on October 9, 2013


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