The Motor Vehicle Accident, Death and Texting
This post examines a recent opinion the Supreme Court -Genesee County, New York issued in a civil case: Vega v. Crane, 2017 N.Y. Slip Op. 27062 (2017). The court begins
the opinion by explaining that
[t]his action was commenced by
Plaintiff seeking to recover for injuries she sustained in a motor vehicle
accident that occurred on December 8, 2012. The Plaintiff's vehicle was struck
by a car driven by Collin Ward Crane, who died as a result of injuries he
sustained in the accident (herein after referred to as `Decedent’). Plaintiff
alleges that the Decedent's girlfriend, Taylor Cratsley, [a named defendant],
(herein after referred to as `Cratsley’), was texting the Decendent while he
was driving, thus distracting him and causing the accident.
Plaintiff moved for partial summary
judgment on the issues of liability and serious injury. These motions were
granted against the decendent, his estate and his father and reduced to a
separate order, which was granted on December 7, 2016. Cratsley, moved for
summary judgment seeking to dismiss the Plaintiff's action against her in its
entirety. The Court reserved on Cratsley's motion for Summary Judgment, which
now follows.
Vega v. Crane, supra.
The law at issue in this case is tort law, which is often referred to as the law that deals with "civil wrongs." You can read more about that in this Wikipedia entry.
The Supreme Court goes on to explain how, and why, the
litigation arose:
On December 8, 2012, a motor vehicle
accident occurred on New York State Route 33 when the vehicle driven by the
Decedent struck head-on a vehicle driven by the Plaintiff. The New York
State Police investigation concluded that Decedent's vehicle crossed the center
line before colliding with Plaintiff's vehicle. Though the accident was
unwitnessed, New York State Police investigators concluded that the Decedent
most likely was distracted, as there were no signs that Decedent attempted to
avoid or take evasive measures to elude contact with the Plaintiff's vehicle.
Upon inspection of the Decedent's
vehicle, investigators located a cell phone on the floor of the driver's side, in
front of the Decedent and between his legs. The cellular phone, which was
significantly damaged, was examined by the New York State Police. Upon
inspection, it appeared that the Decedent and Ms. Cratsley were texting before
the accident occurred. After recovering the digital information from the
Decedent's cellular phone, New York State Police investigators interviewed Ms.
Cratsley. She indicated to the investigators, and subsequently confirmed in her
deposition and later an affidavit, that although she was texting the Decedent
on the date of the accident, she was unaware that the Decedent was driving at
the time they were exchanging text messages. (See Affidavit of
Taylor Cratsley, dated November 21, 2016). Mrs. Cratsley added that often, when
the Decedent was returning from work, a family member would pick him up and
drive him home. She also stated that on the date of the accident, although she
was aware he was working, she was unaware if he was driving himself or getting
a ride to work. Cratsley testified at her deposition that she never expected
nor asked the Decedent to send her text messages or read text messages while
driving. None of the text messages produced contradict Mrs. Cratsley's
testimony.
Vega v. Crane, supra.
The court concludes this part of its opinion by explaining
that
Cratsley moved for summary judgment,
arguing that since New York State does not recognize a duty to control the
actions of a third party, there existed no special relationship between
Cratsley and the Plaintiff that would give rise to any special duty. Plaintiff
opposed the motion, citing New Jersey precedent that establishes a special
relationship and resulting duty under similar circumstances.
Vega v. Crane, supra.
The Supreme Court then took up the legal issues in the case,
explaining, initially, that the
Plaintiff acknowledges that there is no
New York State precedent to establish a duty that would obligate Cratsley to
protect a third party, namely the Plaintiff, from harm. Plaintiff submits that
the matter before the Court is a case of first impression in the State of New
York. However, the Plaintiff maintains that the duty that should be imposed is
consistent with the public policy of the State of New York, which has
established similar duties to third parties in other cases.
If Plaintiff's argument is entertained,
the Court would be forced to engage in a profound re-examination of negligence
law that was addressed in Palsgraf v. Long Island R.R., 248N.Y. 339, 162 N.E. 99 (1928). Palsgraf, an oft-cited
authority, held that in order to recover for the negligent act of others, a
plaintiff must establish duty, standard of care, breach of duty, and proximate
cause. Since Palsgraf, New
York courts have carefully examined those components to establish negligence
and have elaborated on them to justify a recovery for damages.
Vega v. Crane, supra.
The court goes on to explain that the plaintiff, i.e., Vega,
cites to a New Jersey case that
establishes liability in circumstances where a person contributes to a driver's
distraction that results in an accident that causes injury. In Kubert
v. Best, the New Jersey Superior Court, Appellate Division, held that
a third party, who had knowledge that the motorist they were texting was
driving at a time the parties were exchanging text messages, could be found
liable for any resulting damages. 432 N.J.Super. 495, 75 A.3d 1214
(N.J.App.2013). In Kubert, the Plaintiffs were riding on a motorcycle
when a driver crossed the center line and struck them. Both Plaintiffs lost
their legs as a result of the injuries they sustained in the accident. Not only
did the Plaintiffs sue the driver who struck their motorcycle, but they also
sued Shannon Colonna, the party who allegedly was texting the defendant
motorist. At her deposition, Colonna testified that she had sent the defendant
180 text messages in less than twelve (12) hours on the day of the accident.
Colonna also testified that she did not pay attention to whether the recipient
of her texts was driving a car at the time or not. On motion, the underlying
New Jersey trial court granted Colonna summary judgment holding that she had no
legal duty to avoid sending text messages to Best even though she knew he was
driving. The Appellate Division reversed, though still affirming summary
judgment on behalf of Colonna. While affirming that Colonna could not be held
liable because of the lack of proof demonstrating she knew Best was indeed
driving at the time the texts were exchanged, the Appellate Division concluded
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.’ Id. Because
the Plaintiffs had failed to establish that Colonna had such knowledge while
texting Best, she could not be held liable for the resulting injuries caused by
the accident.
Plaintiff would have this Court adopt
the reasoning employed by the New Jersey Appellate Division in Kubert to
deny Cratsley's motion for summary judgment. Plaintiff also relies on to Sartori
v. Gregoire, wherein the Fourth Department held that a passenger in a
vehicle could be held liable for verbally or physically distracting a driver
immediately prior to an accident. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th
Dept.1999). Further, Plaintiff argues that the Restatement (Second) of Torts § 303, which provides, `[a]n act is negligent if the actor intends to
affect, or realizes or should realize that it is likely to affect, the conduct
of a third person in such a manner as to create a duty not to interfere with
the driver's operation,’ applies to the facts present here.
Vega v. Crane, supra.
The Supreme Court then explained that
[i]n opposition, Cratsley argues that
the Plaintiff's argument stands in stark contrast to established precedent in
New York. Cratsley maintains that she had no duty to control the conduct of the
Decedent when he was driving. While undoubtedly there are certain circumstances
that would establish a third-party duty, Cratsley argues that those facts do
not exist here. Cratsley submits that New York law does not place a legal duty
upon an individual who lacks control over the third party's actions. Pulka
v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976).
In Pulka, Plaintiffs
sued not only the driver who struck a pedestrian, but also the owners of a
parking garage. Plaintiffs argued that the garage owners owed a special duty to
surrounding pedestrians. The Court of Appeals found that the garage operators
owed no duty for an accident that occurred when a patron exited and struck a
pedestrian. Pulka stands for the well-settled principle held
that before causation could be examined, a legal duty first must be
established. The Court of Appeals addressed the question of whether owners of
the garage owed a duty to pedestrians. The Court of Appeals held that the
owners did not owe such a duty, and refused to hold a garage operator liable
for the acts of its patrons. Further, the Court of Appeals held that there
needed to exist a duty, wherein the garage operator owed a special obligation
to a pedestrian from one of its patrons, before liability could be established.
Again, the Court held that there existed no special duty. In fact, the Court
held that because of the lack of any special duty between the garage operator
and its patrons or between the garage operator and pedestrians, and the lack of
any reasonable expectation that the garage operator could control or prevent
the negligent conduct of its patrons, no legal duty existed. Id. at
785–786, 390 N.Y.S.2d 393, 358 N.E.2d 1019. Here, the Decendent, his estate and
his father simply maintain that `a defendant generally has no duty to control
the conduct of third persons so as to prevent them from harming others, even
where as a practical matter defendant can exercise such control.’ D'Amico
v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987)
Vega v. Crane, supra.
The court then began its ruling on the issue in the case,
explaining, initially, that
[t]he argument advanced by the
Plaintiff is unique in New York when considering the established body of
precedent on the issues of proximate cause, foreseeability, and duty. While
states such as New Jersey, as memorialized in Kubert, advance
a different standard, courts in New York have either been reluctant to broaden
the principle of negligence law or simply refused to do so.
The principle of negligence law is that
in order to impose liability for a negligent act, the act must be the proximate
cause of the injury that resulted therefrom. N.Y. Jur. 2d, Negligence §
47. In a motor vehicle accident, `an act or omission is a proximate
cause of an accident if it was a substantial factor in bringing about the
accident. That means if it had such an effect in producing the accident that
reasonable men or women would regard it as a cause of the accident.’ Rubin
v. Pecoraro, 141 A.D.2d 525, 529 N.Y.S.2d 142 (2nd Dept.1988). The
injuries or the damages complained of must have been those which might have
been foreseen by a person of ordinary intelligence and prudence, although not
necessarily in the precise form in which they occurred. Kellogg v.
Church Charity Foundation of Long Island, 203 N.Y. 191, 96 N.E. 406
(1911).
The Plaintiff wishes to re-examine the
long-standing doctrine of negligence law established in Palsgraf v.
Long Island Railroad, supra. Palsgraf has been hailed as `perhaps the
most celebrated of all torts cases and one of the best-known American common
law cases of all time.’ William Prosser, Palsgraf Revisited, 52
Mich. L. Rev. 1, 1 (1953). Although familiar to the bench and bar, the facts of
Palsgraf deserve mention. In Palsgraf, a man who was carrying
a package ran to board a departing train. One of the railroad guards
noticed the man and attempted to pull him onboard the train. At the same time,
another guard pushed him from behind. In doing so, the man dropped a package
containing fireworks to the ground. Willis W. Hagen II, Accountants
Common Law Negligence Liability to Third Parties, 1988 Colum. Bus. L.
Rev. 181 (1988). `An explosion which occurred caused a scale at the other end
of the platform to fall on [Palsgraf], who sued the railroad for damages.’ Id. at
201. In his majority opinion, Judge Cardozo wrote that the Long Island Railroad
was not liable to Palsgraf because it did not owe a duty of care to her. In
order to find negligence, the injury to the plaintiff must have been reasonably
foreseeable to the defendant. Palsgraf, 248 N.Y. 339, 341, 162
N.E. 99.
As memorialized by Judge Cardozo,`[i]n
every instance, before negligence can be predicated of a given act, the act
must be sought and found a duty to the individuals complaining, the observance
of which would have averted the injury. Thus, where the injury to the
particular plaintiff is not reasonably foreseeable, the defendant does not have
an obligation to refrain from negligent conduct. Since the defendant does not
have a duty to exercise ordinary care toward unforeseeable persons, liability
for negligence does not result. Id. at 342, 162 N.E. 99.’
`Cardozo held that the defendant could
not be liable as he could not have reasonably foreseen a risk of injury to the
Plaintiff. As such, the defendant's duty of care did not extend to the
Plaintiff. In Palsgraf, the defendant could not have
reasonably foreseen that the plaintiff, who was standing at the other end of
the platform, would be injured as a result of an explosion caused by a falling
package that occurred on the opposite end of the platform. As such, because it
was not reasonably foreseeable, no duty of care was owed.’
Vega v. Crane, supra.
The Supreme Court then returned to the issue in this case,
noting that
[h]ere, Plaintiff asks to modify this
standard to broaden the scope of duty from what should be reasonably
foreseeable. In particular, Plaintiff is asking that a party texting a person
who could be driving should be held liable for the foreseeable risk that might
result from this conduct. Although New Jersey may wish to employ such a
departure, this Court declines to do so.
The Plaintiff's approach longs to have
this Court adopt a standard that is a significant retreat from established law
in this area. While Plaintiff offers a detailed analysis suggesting that there
already exists a pad from which to launch this undertaking, much of the
precedent cited by Plaintiff can be distinguished and does not support her
sweeping conclusion.
Relying on Restatement (Second)
of Torts § 305, Plaintiff suggests that New York law could be
construed to impose liability on an individual who could or should have known
that their conduct might result in harm to an unrelated third party.
Referencing Sartori v. Gregoire, Plaintiff maintains that a passenger
may be liable for verbally or physically distracting a driver immediately prior
to a collision. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th Dept.1999). The
facts of Sartori are quite different from not only those
present here, but from the standard for which Sartori imposes
on similarly situated defendants. In Sartori, `the defendant
commenced a third-party action against a passenger in her vehicle, alleging
that his unwanted sexual advances towards her immediately before she started
her vehicle caused her to forget to turn on the vehicle's headlights.' Id. The
Fourth Department held that
`[w]hile
a passenger in a car may be liable if he distracted the driver while operating
the vehicle immediately prior to the accident, (see, e.g., Collins v.
McGinley, 158 A.D.2d 151, 153, 558 N.Y.S.2d 979, appeal
dismissed 77 N.Y.2d 902, 568 N.Y.S.2d 917, 571 N.E.2d 87, 78 N.Y.2d
1002, 575 N.Y.S.2d 276, 580 N.E.2d 762; Whalen v. Daugherty, 30
A.D.2d 604, 290 N.Y.S.2d 3, lv. denied 22 N.Y.2d 647, 295
N.Y.S.2d 1029, 242 N.E.2d 495) it is undisputed that the third-party defendant
had no verbal or physical contact with defendant once she started her vehicle
and drove out of the parking lot onto the main road where the accident
occurred. Thus, third-party defendant's conduct cannot be deemed a proximate
cause of plaintiff's injuries. Id.’
Sartori v. Gregoire, supra.
The court went on
to note that,
[h]ere, Cratsley was not in the vehicle
with the decedent as was the case in Sartori, thus depriving
her of the first-hand knowledge the defendant in Sartori enjoyed.
Therefore, the holding in Sartori is misplaced. Second, Sartori does
not address the issue as to whether a third party, who has no knowledge whether
a defendant was driving, owes any duty to others. Clearly there is a greater
nexus between a driver and a passenger than the scenario that exists here.
Vega v. Crane, supra. The opinion does not explain what
§ 305 of the Restatement (Second) of Torts
provides, but this is what § 305 says:
An
act may be negligent if the actor intends to prevent, or realizes or should
realize that it is likely to prevent, another or a third person from taking
action which the actor realizes or should realize is necessary for the aid or
protection of the other.
The court then addressed another argument the plaintiff
made, which was that
there exists precedent that permits the
expansion of the foreseeability doctrine. In Davis v. South Nassau
Communities Hospital, a 2015 New York Court of Appeals case, it was
held that medical providers owed a duty to third-party motorists for patients
whose medication might affect their ability to drive. 26 N.Y.3d 563, 26
N.Y.S.3d 231, 46 N.E.3d 614 (2015). Davis involved a motor
vehicle accident involving a patient of a hospital who had been treated and
prescribed certain medication. A party was intravenously administered a pain
killer and a `benzodiazepine drug without warning her that such medication
either impaired or could impair her ability to safely operate an automobile.’ Id. at
569, 26 N.Y.S.3d 231, 46 N.E.3d 614. After her discharge from the hospital the
party drove her vehicle, in an impaired state, and struck another vehicle
resulting in an accident. The question the Court of Appeals faced was whether
the hospital and the physicians who treated the patient owed a duty to the
plaintiff to warn that the medication could affect her ability to operate a
motor vehicle.
The majority opinion painstakingly
examined the record to support its decision. In particular, the Court noted
that during the trial, an expert had testified that the `package label for
Dilaudid states that it “may impair mental and/or physical ability needed to
perform potentially hazardous activities such as driving a car or operating
machinery.”’ Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614.
Further, the expert further opined that the same package, `titled Use
in Ambulatory Patients states that the drug “may impair mental and/or
physical ability required for the performance of potentially hazardous tasks
(e.g., driving, operating machinery). Patients should be cautioned accordingly.”’ Id. Clearly,
the instructions for the medications that were prescribed required the
attending physician to warn and direct the non-party of the ill effects of the
medication. These facts supported the Court of Appeals expansion of the duty
otherwise owed by a defendant to the public at large. Under the facts in Davis, the
Court held `the defendants owed plaintiffs a duty to warn [the non-party] that
the medication administered to her either impaired or could have impaired her
ability to safely operate an automobile.’ Id. at 571, 26
N.Y.S.3d 231, 46 N.E.3d 614.
The Court understood that when
modifying the question of duty, its reach must be always limited by what is
foreseeable. Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614. As
the Court of Appeals acknowledged, `[a]ny expansion of duty is a power to be
exercised cautiously, but it is a power that must be used if the changing needs
of society are to be met.’ Id. As Judge Cardozo observed, that
while dangers are always present, `dangers change as civilizations develop’. MacPherson
v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Consequently,
in Davis, if a medical provider administers medication that
might impair their ability to safely operate a motor vehicle, the `medical
provider has a duty to third parties to warn the patient of that danger.’ Davis, 26 N.Y.3d at 570, 26 N.Y.S.3d
231, 46 N.E.3d 614.
Vega v. Crane, supra.
The court went on to explain that
[w]hile at first glance the holding in Davis represents
a tenuous stretch from the established orthodoxy on the question of negligence,
the Court of Appeals detailed its careful historical progression in expanding
the existing duty of care. First, in Eiseman v. State of New York, the
Court of Appeals declined to recognize a duty to a large class of unknown
individuals as opposed to a `known and identifiable group.’ 70 N.Y.2d 175,
518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). In Eiseman, an
ex-felon with a known violent history, was released from jail and placed into a
`special State college program for the disadvantaged.’ Id. at
180, 518 N.Y.S.2d 608, 511 N.E.2d 1128. After being placed in the program, the
ex-felon raped and murdered a fellow student. The student's estate sued the
State alleging that the State's physician, who had treated the felon and knew
of his violent history and psychological instability, owed a duty to warn the
college community at large. The Court declined to extend the principle of duty
maintaining that the State's treating physician `did not owe a duty of care to
members of the community individually.’ Id. at 188–189, 518
N.Y.S.2d 608, 511 N.E.2d 1128.
In Purdy v. Public
Administrator of Westchester County, a resident of a local nursing
home, who apparently had use of a vehicle, caused an accident resulting in
injury. 72 N.Y.2d 1, 530 N.Y.S.2d 513, 526 N.E.2d 4 (1988). The resident
had a medical condition that left her susceptible to fainting spells and
blackouts. The plaintiff in Purdy argued that the nursing home
and its resident physician owed a duty to prevent the resident from driving or
to at the very least warn her of the dangers of driving given her condition to
not only the Plaintiff, but an unidentified member of the public. The Court of
Appeals recognized that `there exist special circumstances in which there is a
sufficient authority and ability to control the conduct of third persons that
[have given rise to] a duty to do so.’ Id. at 8, 530 N.Y.S.2d
513, 526 N.E.2d 4. Notwithstanding that, the Court of Appeals declined to find
the existence of a special relationship between the defendant and the resident
that would require the defendant to govern their conduct for the benefit of the
plaintiff. The Court held that neither the nursing home nor the doctor had the
`authority or ability to exercise such control over [the resident's] conduct so
as to give rise to a duty on their part to protect [the] plaintiff—a member of
the general public.’ Id. at 8–9, 530 N.Y.S.2d 513, 526 N.E.2d
4.
The Davis Court also
referenced Tenuto v. Lederle Laboratories, 90 N.Y.2d 606, 665
N.Y.S.2d 17, 687 N.E.2d 1300 (1997); Cohen v. Cabrini Med. Ctr., 94
N.Y.2d 639, 709 N.Y.S.2d 151, 730 N.E.2d 949 (2000); Hamilton v.
Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055
(2001); and McNulty v. City of New York, 100 N.Y.2d 227, 762
N.Y.S.2d 12, 792 N.E.2d 162 (2003) in detailing its evolution to the
holding it ultimately reached. In each of these cases, the Court of Appeals
gradually expanded the duty owed to other individuals. However, there was
always a nexus between the plaintiff and the offending defendant, for whom a
special relationship allegedly existed. Mostly, that nexus dealt with an
extension of a duty physicians owed their patients. Other cases, most notably Hamilton, where the Court of Appeals
concluded that handgun manufacturers did not owe a duty of care to in the
marketing and distribution of the handguns they manufactured, ostensibly dealt
with a large, undefined group that the named defendant could not possibly
foresee a duty to cover. Davis dealt specifically with a
doctor's failure to caution an unrelated party about the side-effects of
prescribed medication that contained specific instructions with appropriate
warnings. Here, no such nexus or specificity exists that could link an
individual, who did not have knowledge that the tortfeasor was driving, to an
unnamed plaintiff of the general community who was involved in an unfortunate,
but unforeseen, accident.
Vega v. Crane, supra.
The Court of Appeals then began the process of outlining,
and explaining, its decision in this case. It began by explaining that
[i]nasmuch as the Court of Appeals expanded
the breadth of the duty owed in a negligence case, it did so cautiously and
reluctantly. The Court warned not to misinterpret its decision as a full
erosion of the duty of care. Instead, the Court heralded `while the temptation
is always great to provide a form of relief to one who has suffered, the law
cannot provide a remedy for every injury incurred.’ Davis, 26 N.Y.3d at
580, 26 N.Y.S.3d 231, 46 N.E.3d 614; citing Albala
v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786 (1981).
More directly, `[n]ot all mistakes result in liability.’ Id.
Justice Stein's dissent, while not
controlling, was certainly instructive in dissuading a haphazard expansion of
the concept of duty. Cautioning not to take sympathy into consideration, she
advised that courts must be mindful of the precedential, and consequential,
future effects of their rulings and “limit the legal consequences of wrongs to
a controllable degree.” Id. at 584, 26
N.Y.S.3d 231, 46 N.E.3d 614, citing Lauer v. City of New York, 95
N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000), quoting Tobin v. Grossman, 24
N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969). This Court
agrees that, no matter how careless it may seem, not all conduct creates a duty
to an unknown. This is especially true when the record fails to establish that
the defendant had any knowledge that the Decedent was driving the vehicle that
ultimately struck the Plaintiff. The absence of that proof, as well as the
established reluctance to expand a duty to persons with whom a tenuous nexus
exists, requires summary judgment. To expand the duty as Plaintiff here seeks
would set a crushing exposure to liability, which Courts generally must protect
against. Strauss
v. Belle Realty Co., 65 N.Y.2d 399,
492 N.Y.S.2d 555, 482 N.E.2d 34 (1985).
Vega v. Crane, supra.
The Supreme Court ended the opinion by explaining that
[i]f the theory advanced by the
Plaintiff here is adopted, the expansion of liability to individuals who text
message would be exponential. Should a Court accept the Plaintiff proposition,
a party texting another, regardless of any specific knowledge, could be liable
for an injury caused by the party receiving the text messages simply by virtue
of the text being sent. In this day and age, where texts are routinely sent to,
for example, advise the public of breaking news, that prescriptions are ready
for pick up, or to advise that a bill is to be paid, the sender would be
responsible for any injuries that could be caused should a driver become
distracted by their receipt. With texting being as profligate, the potential
expansion as contemplated by the Plaintiff is astronomical.
This Court is not ignorant of the many
steps taken by not only this state, but others in the nation, to protect
against motorists from texting while driving. While that certainly is not the
only issue presented for consideration, this Court does not believe it is the
province of a Court to establish a precedent for want of a statute that
otherwise has not been considered, let alone approved, by a legislative body.
Though many would prefer a Court simply to make law where either a legislative
body or executive has failed to do so, this Court does not believe that is its
role. It is not the role of the judiciary to sit on high and promulgate
what it believes should have been a policy determination made elsewhere.
Instead, the courts have deferred to the wisdom, or absence of it, of the
legislature in defining what is actionable and what is not. Rosenfeld
v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2nd Dept.1980); MobilOil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In short, courts are not free to decide what should be founded in
statutory authority. This is the realm of the legislature. Simply put, if the
legislature wishes to make actionable a third-party's texting to a motorist,
notwithstanding their lack of knowledge that the person to whom they are
texting is driving, they should do so. This Court refuses to establish this
cause of action by judicial fiat.
Accordingly, the motion for summary
judgment made by Defendant, Taylor Cratsley, is hereby GRANTED. Defendant shall
submit an Order on notice.
Vega v. Crane, supra.
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