I've had friends and even state legislators call me while they are driving. That's part of why it's so hard to get the South Dakota Legislature to pass a texting/phoning-while driving ban: the majority of legislators are trying to catch up on business with every spare minute, including their long, lonely weekend stretches on the highway.
I've wondered if I might have an obligation to hang up on my friends and legislators when I hear the highway rushing in the background of the phone call, to tell them, "Call me back when you've stopped."
A ruling from the Superior Court of New Jersey suggests I might. Three New Jersey judges heard an appeal from David and Linda Kubert, who lost their left legs when 18-year-old Kyle Best crossed the center line while texting female friend Shannon Colonna and hit the Kuberts' motorcycle with his truck. The Kuberts sued and got a settlement from Best, but they also sued Colonna, saying that by texting Best while he was driving, she was "electronically present" and contributed to the accident.
The lower court dismissed the suit against Colonna, and the appellate division upheld the dismissal. But the court sets this standard, which the Kuberts didn't satisfy but which other plaintiffs could:
We hold that the sender of a text message can 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 [Superior Court of New Jersey, Appellate Division, Kubert v. Best and Kolonna, Docket No. A-1128-12T4, 2013.08.27].
Interesting: our legal obligation to keep it down back there! may extend from the back seat to the couch at home.
Colonna got off because, the judges concluded, "Colonna did not have a special relationship with Best by which she could control his conduct. Nor is there evidence that she actively encouraged him to text her while he was driving." However,
When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same [Kubert v. Best and Kolonna, 2013.08.27].
This ruling underscores an important philosophical point about our evolving technology: legally, morally, attentively, we can be someplace other than where we are.
...texting someone can sometimes be the same as actually being with them. The implication of this point is a bit larger: The physical world doesn't exist separately from cyberspace; technology and life often overlap, sometimes with lethal consequences.
"I think the court is right to define 'presence' as not only rooted in physical space, but also by attention -- something digital communication can garner a substantial amount of, even over great distance," said Nathan Jurgenson, a digital theorist who has written about these issues [Matt Pearce, "New Jersey Court: Texting with a Driver Can Get You in Trouble, Too," Los Angeles Times, 2013.08.27].
Perhaps the justices and Jurgenson offer a digital-age reformulation of Home is where the heart is... an interesting point to make as I blog South Dakota from outside South Dakota.
But trust me: I won't be blogging from behind the wheel. And if you call or text with a tip, I won't respond until I'm done driving. After all, I wouldn't want to get you in trouble.