'A matter of time' before text sender held responsible in distracted driving crash, lawyer says

Before you hit send on your next text message, a Toronto lawyer says you'll want to make sure the person on the other end isn't driving.

A New Jersey court determined a sender can be liable if they know the receiver is driving

Distracted driving is now the leading cause of death on Canadian roads. (David Horemans/CBC)

Before you hit send on your next text message, you'll want to make sure the person on the other end isn't driving.

The warning, from a Toronto lawyer, comes in anticipation that the sender of a text that leads to a collision may one day be held responsible for injuries to a third party.

"It's a matter of time," said Jordan Solway, the group general counsel and vice president of claim with Travelers Canada

Solway points to a 2009 incident in New Jersey, in which an 18-year-old driver drifted into an oncoming lane and plowed head-on into a motorcycle.

The two riders on the motorcycle suffered serious injuries and had their legs amputated. They sued the driver and his girlfriend, who was texting him at the time of the crash.

In 2013, a state court determined the driver was responsible in the incident, but the sender was not.

"They found that there was insufficient evidence to demonstrate that the sender knew the operator was reviewing the text while driving," Solway said in an interview with Metro Morning.

Lawyer Jordan Solway said many drivers 'simply don’t want to miss something important' while on the road. (LinkedIn)

Still, Solways says, the court established the notion that a sender could be held responsible in a similar case if there is stronger evidence the sender knew the driver was behind the wheel.

"If you know you're interfering with someone's operation of a vehicle, there's really no difference whether you're sitting in the passenger seat doing that or sitting at home sending the text," he said.

With that duty now established, Solway believes a similar standard will soon arrive in Canada, though so far no similar cases have been tried.

Changing attitudes

Solway says a change in Canadian law would reflect growing concerns about distracted driving, which is now the leading cause of death on the road.

Reducing those fatalities may require a similar approach to drunk driving laws introduced over the previous decades, he said.

"Twenty years ago, the notion of holding a restaurant or tavern responsible for over-serving somebody who gets in a car and causes an accident was relatively novel," Solway said.

"Now we take it as trite that you have that obligation."

Along with a change to law, Solway says there's more work to do to make sure drivers don't pick up their phones on the road.

A recent study conducted by Travelers Canada found that more than a third of Canadians answer their phones while driving "because of family obligations that require constant attention."

While the OPP recorded 83 inattentive driving deaths in 2017, Solway says many drivers still "simply don't want to miss something important" when their phones ring.