Lawrence County Judge John Hodge recently allowed a negligence and wrongful death claim to proceed against two men who were texting a driver as she crashed into a motorcyclist causing fatal injuries. In his decision of March, 2016, Judge Hodge cited the Restatement (Second) of Torts, which provides a third party can be held another in violating a duty. Judge Hodge was also persuaded by New Jersey case law as follows: “The New Jersey case of Kubert, supra, although not binding on the Court here, suggests that the sender of a text message can be liable for sending a text message while the recipient is operating a motor vehicle if the sender knew or had reason to know the recipient was driving. In reflecting upon Section 876 of the Restatement and Kubert, and in considering the averments in the light most favorable to the plaintiff as the law requires, the court concludes that Defendant Fend should remain a party in this case at this time, and plaintiff may explore through discovery whether Defendant Fend violated a duty owed to a third person.” (Emphasis supplied). As this case makes its way through the Pennsylvania Courts, the message is clear: Don’t text anyone you know to be driving, and if anyone texts you while driving, don’t respond

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