Could you be sued for texting a driver?

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Could you be sued for texting a driver?
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Text-message senders, beware: U.S. courts are moving ever closer to blaming the sender of a text for car accidents that occur while the recipient is driving and texting back.

How could someone be responsible for an accident caused by a driver when they weren’t even in the car?

Read more: This technology could prevent texting and driving

Could you be sued for texting a driver?

I explored this only-in-the-digital-age notion several years ago in the MSNBC series, The Red Tape Chronicles, when a New Jersey man was sued after he texted with a woman around the time he struck another car, causing two sisters to become partially paralyzed. Briefly, the legal theory relies on the notion of “aiding and abetting,” an act that causes harm (a tort) to someone else. The plaintiff’s attorney in that case compared sending a text to a driver to holding a piece of paper in front of a driver’s face causing temporary blindness, which could lead to an accident.

That 2012 case, which gained national attention, was decided in the defendant’s favor, to the delight of critics who found the notion absurd. But while media cameras were focused elsewhere, a New Jersey appeals court left the door wide open for future lawsuits against text message conversation participants outside the car.

Now a Pennsylvania case has opened that door even wider.

A Lawrence County court recently ruled that a plaintiff may proceed with a lawsuit aiming to collect damages from a text sender after the recipient texted and failed to notice a motorcycle rider in front of her slowed to make a turn. The driver, Laura Gargiulo, struck the motorcycle, dragging rider Daniel Gallatin 100 feet to his death. Gargiulo had received texts from both Joseph Gargiulo (relationship unclear from court documents) and Timothy Fend, whom the court describes as a “paramour,” or lover. Both are named as defendants in the lawsuit.

Laura Gargiulo pled guilty to involuntary manslaughter in 2014, and served 60 days in jail for Gallatin’s death. Now, the Gallatin estate is suing for damages. Both Fend and Joseph Gargiulo filed objections to being included in the lawsuit, saying no law creates a duty that text message senders can be responsible for the actions of a recipient who is driving. However, Judge John W. Hodge sided with Gallatin’s lawyers, indicating it was possible they could prove later that Joseph Gargiulo or Fend “aided and abetted” violation of the state’s distracted driving laws.

Read more: New law would require drivers involved in a crash to submit phone to ‘textalyzer’

Hodge relied on that New Jersey appeals court ruling in his decision.

“Although not binding on the court here, [that ruling] suggests that the sender of a text message can be liable for sending a message while the recipient is operating a motor vehicle if the sender knew, or had reason to know, the recipient was driving,” Hodge wrote.

The ruling is not a clear finding that texters outside a car can be responsible for accidents caused by a driver; it merely extends the possibility for such a finding a bit farther down the line. In fact, in the New Jersey case cited by Hodge, the court was actually upholding a lower-court finding that a defendant in a similar car crash was not liable — but only because the facts of that case made it difficult to conclude the sender knew the recipient was driving. The appeals court went to great pains to make clear it may fight for a plaintiff in the future.

“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” New Jersey Superior Court Appellate Division Judge Victor Ashrafi wrote.

Citing that opinion, Judge Hodge merely refused to remove Joseph Gargiulo or Fend from the Gallatin lawsuit, for now. There’s a lot the plaintiff still has to prove. That said, the case should give anyone texting with a driver serious pause. While drivers are ultimately responsible for what their vehicles hit, it’s easy to imagine a situation where a text message sender should have known better. For example, the driver could say, “I’m driving right now,” and if the sender persists in being distracting, say, by sending flirtatious messages, one can imagine a plaintiff’s attorney pursuing the aiding and abetting theory.

Read more: Largest recall in U.S. history adds 35 to 40 million more airbag inflators to the list

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This article originally appeared on Credit.com.

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