Use of cellphones is ubiquitous in America. According to a survey by the Pew Research Center, approximately 90% of American adults and 98% of young adults (ages 18-29) own a cell phone.
An overwhelming majority of those cell phone owners use their phones to send and receive text messages, including 97% of owners aged 18-29.
When sending a text message, cell phone users generally expect a prompt response. This is particularly true of teenagers. A 2012 survey of teen drivers found that 48% of teens expect a reply to a text or e-mail message "right away," while 89% expect a reply in 5 minutes or less.
Unfortunately, cell phone users are increasingly reading and replying to text messages while driving.
Texting while driving is a well-known public health hazard. At 55 miles per hour, a car can travel the length of a football field in the 5 seconds it may take to read a text message. Sending a text message while driving has been found to double the risk of auto accidents or near-crashes and result in drivers taking their eyes off the road for a mean time of 23 seconds.
But while more than 90% of drivers say that text messaging or sending an e-mail while driving is unacceptable and nearly 80% of drivers say that it is completely unacceptable, many do it anyway. In a 2016 survey of drivers by the AAA Foundation for Traffic Safety, 40.2 % admitted to reading a text or e-mail while driving in the past 30 days (11% said they did so fairly often or regularly), and 31.4% admitted typing/sending a text or e-mail while driving (8% fairly often or regularly).
Meanwhile, distracted drivers were involved in 10% of fatal crashes, 18% percent of injury crashes, and 16% percent of all police-reported motor vehicle traffic crashes in 2014, resulting in the deaths of 3,179 people and injuries to an estimated 431,000.
The New York State Legislature has recognized the hazard of texting while driving, enacting Vehicle and Traffic Law § 1225-d, which prohibits drivers from operating a motor vehicle while using a hand-held cell phone to compose, send, access or read texts and emails, among other things. Violation of this statute is punishable by fines of $50-$450 and, for probationary and junior drivers, a 120-day license suspension. In addition, a distracted driver who causes an accident in New York may be held liable for injuries to his/her passengers, occupants of the other vehicles in the collision, and anyone else who is hurt, including bicyclists and pedestrians.
A recent New Jersey case, Kubert v. Best, held that a person who is not in the vehicle, but is actively texting back and forth with the driver at the time of the collision may also be held liable for contributing to the driver's distraction from the roadway.
The court found that while "it is the primary responsibility of the driver to obey the law and avoid distractions," and the sender of a text "should be able to assume that the recipient will read a text message only when it is safe and legal to do so," if a "sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending the text..., has knowingly engaged in distracting conduct, and it is not unfair...to hold the sender," as well as the recipient, liable for the result of that distraction.
However, this decision applies only in New Jersey. For now at least, liability for injuries or deaths caused by distracted driving in New York rests solely on the driver/owner of the vehicle.